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HomeMy WebLinkAbout02-2196Shrager, Spivey & Sachs By: Wayne R. Spivey, Esquire/V. Patti Bucci, II, Esquire Identification Numbers: 31017/87394 32nd Floor, Two Commerce Square 2001 Market Street Philadelphia, Pennsylvania 19103 (215) 568-7771 JOAN A. KICHMAN, Individually and as the Executrix of the Estate of CHARLES C. KICHMAN, Dec'd 356 Old Stage Road Lewisberry, PA 17339 Plaintiff VS. JAM~S PASTOR 503 N. 21st Street Camp Hill, PA 17011 and WEST SHORE ANESTHESIA ASSOCIATES, LTD. 503 N. 21st Street Camp Hill, PA 17011 and ROBERT P. LONERGAN 207 House Avenue, #105 Camp Hill, PA 17011 and LONERGAN ORTHOPEDICS 207 House Avenue, #105 Camp I-Iill~ PA 17011 and HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY 503 N. 2Pt Street Camp Hill, PA 17011 Defendants : CUMBERLAND COUNTY : COURT OF COMMONPLF~AS : CIVIL DMSION NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days ef~er this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or o~jections to the claims set forth against you. You are warned that if you fall to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint of for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. "YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. AVISO "Lc han demandado a usted en la corte. Si usted quiere defenderse de estas demand.as expuastas en las pginas siguientas, usted tiene veinte (20) dis de plazo al partir dela fecha de la demanda y la notificacin. Hace f~lta asenta~ una comparencia escrita o en persona o con un abogado y entregar a la corte en forma ascrita sus defensas o sus objeciones a las demandes en contxa de su persona. Sea avisado que si usted no se defiende, la corse tomar medides y poede continuar la demanda en contra suya sin previn aviso o notificacin. Adems, la corte puede decidir a favor del demandante y requiere que usted compla con todas las prnvisinnes de esta demanda. Usted puede perder dinero o sus propiedades u otros derechos importantes para usted. '%LEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELFONO A LA OFICINA CUYA DIRECCIN SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR Shrager, Spivey & Sachs By: Wayne R. Spivey, Esquire/V. Paul Bucci, II, Esquire Identification Numbers: 31017/87394 32nd Floor, Two Commerce Square 2001 Market Street Philadelphia, Pennsylvania 19103 (215) 568-7771 JOAN A. KICHMAN, Individually and as the Executrix of the Estate of CHARLES C. KICHMAN, Dec'd 356 Old Stage Road Lewisberry, PA 17339 Plaintiff VS. JAMES PASTOR 503 N. 21~ Street Camp Hill, PA 17011 and WEST SHORE ANESTHESIA ASSOCIATES, LTD. 503 N. 21st Street Camp Hill, PA 17011 and ROBERT P. LONERGAN 207 House Avenue, #105 Camp Hill, PA 17011 and LONERGAN ORTHOPEDICS 207 House Avenue, #105 Camp Hill, PA 17011 and HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY 503 N. 21st Street Camp Hill, PA 17011 Defendants : CUMBERLAND COUNTY : COURT OF COMMONPLF~AS : CIVIL DIVISION :No.: : : : : : : : : : : : : : : : : : : : : : CIVIL ACTION COMPLA Plaintiff, by her attorneys, Shrager, Spivey & Sachs, hereby demands damages of defendants herein, jointly and severally, for a sum in excess of Fifty Thousand Dollars ($50,000.00), exclusive of interest, costs, and damages for prejudgment delay upon causes of action whereof the following are statements: 1. Plaintiff, Joan A. Kichman, an adult individual, is a citizen of the Commonwealth of Pennsylvania, residing therein at 356 Old Stage Road, Lewisberry. She is the duly appointed Executr'Lx of the Estate of Charles C. Kichman, deceased (hereinafter referred to as "Mr. Kichman"), having been appointed same by the Register of Wills of York County on February 19, 2002. 2. Defendant, James Pastor (hereinafter referred to as "Dr. Pastor"), an adult individual, is a citizen and resident of the Commonwealth of Pennsylvania and at all times relevant hereto has been engaged in the practice of medicine with an office and place of business located at 503 N. 21th Street, Camp Hill, Pennsylvania. 3. At all times pertinent hereto, Dr. Pastor was engaged in the practice of medicine, pursuing the specialty of anesthesiology, and was obliged to bring to bear in the practice of his profession the professional skills, knowledge and experience which he possessed or was obliged to posses, and to pursue his profession in accordance with reasonably safe and acceptable standards of medicine, in general, and anesthesiology, in particular. 4. Defendant, West Shore Anesthesia Associates, Ltd. (hereinafter referred to as "West Shore"), is a corporate entity, organized and existing under the laws of Pennsylvania, with an office and place of business located at 503 N. 21th Street, Camp Hill, Pennsylvania. 5. At all times pertinent hereto, West Shore acted through its agents, servants, and/or employees, including Dr. Pastor, in conjunction with the care rendered to Mr. Kichman. At all times pertinent hereto, the agents, servants, and/or employees of West Shore were acting within the course and scope of their employment, agency, or apparent agency in conjunction with the care rendered to Mr. Kichman. 6. Defendant, Robert P. Lonergan (hereinafter referred to as "Dr. Lonergan"), an adult individual, is a citizen and resident of the Commonwealth of Pennsylvania and at all times relevant hereto has been engaged in the practice of medicine with an office and place of business located at 207 House Avenue #105, Camp Hill, Pennsylvania. 7. At all times pertinent hereto, Dr. Lonergan was engaged in the practice of medicine, pursuing thc specialty of orthopedic surgery, and was obliged to bring to bear in the practice of his profession the professional skills, knowledge and experience which he possessed or was obliged to posses, and to pursue his profession in accordance with reasonably safe and acceptable standards of medicine, in general, and orthopaedic surgery, in particular. 8. It is believed and therefore averred that defendant, Lonergan Orthopedics, is a corporate entity, organized and existing under the laws of Pennsylvania, with an office and place of business located at 207 House Avenue #105, Camp Hill, Pennsylvania. 9. At all times pertinent hereto, Lonergan Orthopedics acted through its agents, servants, and/or employees, including Dr. Lonergan, in conjunction with the care rendered to Mr. Kichman. At all times pertinent hereto, the agents, servants, and/or employees of Lonergan Orthopedics were acting within the course and scope of their employment, agency, or apparent agency in conjunction with the care rendered to Mr. Kichman. 10. Defendant, Holy Spirit Hospital of the Sisters of Christian Charity (hereinafter referred to as "Holy Spirit"), is a corporation, organized and existing under and pursuant to the laws of the Commonwealth of Pennsylvania and at all times pertinent hereto was operating a hospital at 503 N. 21th Street, Camp Hill, Pennsylvania. 11. At all times pertinent hereto, Holy Spirit held itself out in the community as being a full service medical care institution, properly equipped and staffed, and rendering quality medical care, acting through its departments, medical groups, staff members and other agents, servants and employees. 12. The agents, servants and employees of West Shore included Dr. Pastor as well as any other medical treatment providers employed by West Shore who rendered, or undertook to render, medical care and treatment to Mr. Kichman as set forth below. 13. The agents, servants and employees of Lonergan Orthopedics included Dr. Lonergan as well as any other medical treatment providers employed by Lonergan Orthopedics who rendered, or undertook to render, medical care and treatment to Mr. Kichman as set forth below. 14. The actual or ostensible agents, servants and employees of Holy Spirit included Dr. Pastor and Dr. Lonergan, as well as any other medical treatment providers employed by Holy Spirit who rendered, or undertook to render, medical care and treatment to plaintiffs decedent from May 14, 2000 through, and including, May 28, 2000. The specific acts of negligence that these actual or ostensible agents, servants and employees committed within the scope of said agency are described in detail below. 15. Defendants, Dr. Pastor and Dr. Lonergan, West Shore Anesthesia Associates, Lonergan Orthopedics and Holy Spirit, each presently treat patients in Cumberland County, and thus regularly conduct business therein, within the meaning of the Pennsylvania Rules of Civil Procedure. 16. At all times pertinent hereto, all defendants had a medical treater/patient relationship with Mr. Kichman; said defendants rendered and/or undertook to render medical treatment and care to Mr. Kichman, individually and/or acting through their actual or ostensible agents, servants, and employees. Defendants, therefore, had a legal duty to render such medical treatment and care in accordance with accepted standards of medicine. 17. At the time of the events giving rise to this action, plaintiff and her decedent were citizens, residents and domiciliaries of the Commonwealth of Pennsylvania; decedent was a citizen, resident and domiciliary of the Commonwealth of Pennsylvania at the time of his death. FACTUAL BACKGROUND 18. On or about May 14, 2000, Mr. Kichman, sustained an injury to his right leg and knee when he accidentally stepped into a mole or groundhog hole in his yard. Mr. Kichman had a prior medical history which included coronary artery disease, hypertension, hyperlipidemia, and a right total knee replacement approximately five years earlier. 19. At that time, Mr. Kichman was transported, via ambulance, to the Emergency Department at Holy Spirit whereupon X-rays revealed that he had sustained a spiral, comminutcd fracture through his distal femur which involved the proximal end of the revision prosthesis of the total knee replacement. 20. On or about May 15, 2000, Mr. Kichman was admitted by Dr. Lonergan to Holy Spirit for definitive care and treatment of his injuries. 21. On or about May 15, 2000, Mr. Kichman was taken to an operating room at Holy Spirit, whereupon Dr. Lonergan, as the orthopedic surgeon, and Dr. Pastor, as thc attending anesthesiologist, performed an open reduction and internal fixation of thc right femoral fracture and revision of the right total knee replacement. 22. For this surgical procedure, Mr. Kichman was placed under general anesthesia and had an opening blood pressure recorded at 200/100. Arterial blood pressure monitor'mg was not used. 23. Shordy after the surgical procedure was initiated, there was a period of hypotension that lasted for more than 15 minutes which was treated with ephedrine 10mg and 10 mg. 24. Subsequently, during the surgical procedure, there was another period of hypotension that exceeded 45 minutes which was also treated with ephedrine 10mg and 10mg. 25. Postoperatively, Mr. Kichman suffered an ischemic stroke from which he did not recover. Consequently, Mr. Kichman died on May 28, 2000. 26. The decedent's death was caused by the negligence of the defendants, as set forth in detail below, and was contributed to in no way by the plaintiff or by the decedent. 27. Mr. Kichman was survived by his wife, Joan A. Kichman, the plaintiff herein, and three (3) adult children who live at the follow'rog addresses: Survivor Matthew C. Kichman Michael W. Kichman Kandis Marie Heath 28. 27, above. 29. lifetime. 30. Address 355 Old Stage Rd. Lewisberry, PA 17339 716-B Ligget Ave. Persidio San Francisco, CA 94129 202 Glenwood Rd. Chapel Hill, NC 27516 Relationship To Decedent Son Son Daughter Notice of this action has been served upon all of the persons identified in paragraph Plaintiffs decedent brought no claim for the injuries complained of herein during his The negligent conduct of Dr. Lonergan, Dr. Pastor, Lonergan Orthopedics and West Shore included the following: (a) failing to adequately maintain decedent's blood pressure during surgery in light of his known history of hypertension and documented cardiovascular status; (b) failing to prevent deccdent's blood pressure from falling to hypotensive levels and permitting dcccdent's blood pressure to remain at hypotensivc levels for extended periods of time; (c) failing to adequately monitor decedent's blood pressure and respond to thc acute periods of hypotcnsion; (d) failing to abandon the surgical procedure when prolonged periods of hypotension were encountered; (e) failing to adequately treat decedent's hypotensive condition during the course of thc surgical procedure with proper medications or medicines; (f) failing to utili?e spinal anesthesia in a patient with a known history of elevated blood pressure and potential carotid artery disease; and (g) failing to diagnose decedent's carotid artery disease and failing to properly take it into consideration in treating decedent's hypotension during the course of the surgical procedure. 31. In addition to his alleged negligence, Dr. Lonergan further committed a technical battery upon decedent by: (a) failing to inform thc decedent of the risks and potential for complications, prior to obtaining his consent to perform the surgical procedure; and (b) failing to inform the decedent of the alternatives to thc surgical procedure he performed upon him, or alternative means of performing the procedure he performed, before obtaining his consent to perform such a procedure. 32. In addition to his alleged negligence, Dr. Pastor fiarther committed a technical battery upon decedent by: (a) failing to inform the decedent of the risks and potential for complications, prior to obtaining his consent to perform the surgical procedure; and (b) failing to inform the decedent of the alternatives to the surgical procedure he performed upon him, or alternative means of performing the procedure he performed, before obtaining his consent to perform such a procedure. 33. Holy Spirit is vicariously liable for the conduct of its agents, apparent agents, servants and employees who negligently: (a) failed to adequately maintain decedent's blood pressure during surgery in light of his known history of hypertension and documented cardiovascular status; (b) failed to prevent deccdent's blood pressure from falling to hypotensive levels and permitted decedent's blood pressure to remain at hypotensive levels for extended periods of time; (c) failed to adequately monitor decedent's blood pressure and respond to the acute periods of hypotension; (d) failing to abandon the surgical procedure when prolonged periods of hypotension were encountered; (e) failing to adequately treat deccdent's hypotensive condition during the course of the surgical procedure with proper medications or medicines; (f) falling to utilize spinal anesthesia in a patient with a known history of elevated blood pressure and potential carotid artery disease; and (g) failing to diagnose decedent's carotid artery disease and failing to properly take it into consideration in treating decedent's hypotension during thc course of the surgical procedure. 34. In addition to being vicariously liable for the conduct of its agents, servants and employees specifically identified in paragraph 31 above, Holy Spirit was itself negligent in the following respects: 9 (a) failing to use reasonable care in the maintenance of safe and adequate facilities and equipment; (b) failing to select and retain only competent physicians; (c) failing to oversee all persons who practice medicine within its walls as to patient care; and (d) failing to formulate, adopt and enforce adequate rules and policies to ensure quality care for its patients. COUNT I WRONGFUL DEATH ACTION 35. Paragraphs 1 through 34 are hereby incorporated by reference as though fully set forth at length herein. 36. Plaintiff brings this action on behalf of decedent's survivors, under and pursuant to the Pennsylvania Wrongful Death Act, for the economic and other losses suffered by said survivors as a result of decedent's death, including his contributions, services, guidance and tutelage, and for funeral, medical and other legally compensable expenses associated with his final illness. WHEREFORE, plaintiff, by her attorneys, Shrager, Spivey & Sachs hereby demands damages of the defendants herein in a sum in excess of fifty thousand dollars ($50,000.00), exclusive of interest, costs and damages for pre-judgment delay. COUNT II SURVIVAL ACTION 37. Paragraphs 1 through 36 arc hereby incorporated by reference as though fully set forth at length herein. 10 38. Plaintiff brings this action on behalf of the Estate of the decedent, under and pursuant to the Pennsylvania Survival Act, for damages for the pecuniary losses suffered by decedent's Estate during the period of his life expectancy, as well as for the conscious pain and suffering which he endured as a result as the misconduct of the defendants, and for all other legally compensable expenses incurred in connection with decedent's illness. WHEREFORE, plaintiff by her attorneys, Shrager, Spivcy & Sachs, hereby demands damages of the defendants herein, jointly and severally, in a sum in excess of fifty thousand dollars ($50,000.00), exclusive of interest, costs and damages for pre-judgment delay. Shrager, Spivey & Sachs Wayne R. Spivcy V. Paul Bucci, II Attorneys for Plaintiff 11 VERIFICATION Joan A. Kichman hereby states that she is the plaintiff in the foregoing action and that the foregoing averments in the Complaint are true and correct to the best of her knowledge, information and belief. The language of said averments is that of counsel and not of plaintiff. Plainfiffhas read the Complaint and to the extent that it is based upon information which she has given to her counsel, it is true and correct to the best of her knowledge, information and belief. To the extent that the language of the Complaint is that of counsel, she has relied upon counsel in making this verification. This Statement is made subject to thc penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. lOAN A. ictc JOAN A. KICHMAN, Individually and as the Executrix of the Estate of CHARLES C. KICHlVIAN, Dec'd, Plaintiff JAMES PASTOR, WEST SHORE ANESTHESIA ASSOCIATES, LTD., ROBERT P. LONERGAN, LONERGAN ORTHOPEDICS, HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA ; : NO. 02-2196 : : -_ : CML ACTION - LAW : : : : : PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: PLEASE enter my appearance on behalf of the defendant, Holy Spirit Hospital. Date: May 17, 2002 By: METTE, EVANS & WOODSIDE Sup. Ct. I. D. #34344 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendant Holy Spirit Hospital CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Wayne R. Spivey, Esquire V. Paul Bucci, II, Esquire Shrager, Spivey & Sachs 32nd Floor, Two Commerce Square 2001 Market Street Philadelphia, PA 19103 Robert P. Lonergan 207 House Avenue #105 Comp Hill, PA 17011 James Pastor 503 North 21 Street Camp Hill, PA 17011 West Shore Anesthesia Associates, Ltd. 503 North 21 Street Camp Hill, PA 17011 Lonergan Orthopedics 207 House Avenue #105 Camp Hill, PA 17011 By: METTE, EVANS & WOODSIDE Steven D. Snyd~r, E~uire Sup. Ct. I. D. #34344 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendant Holy Spirit Hospital DATE: May 17, 2002 MICHAEL M. BADOWSKI, ESQUIRE Pa. Supreme Court I.D. No. 32646 STEPHEN L. BANKO, JR., ESQUIRE Pa. Supreme Court I.D. No. 41727 MAR~OLIS EDELSTEIN 3510 Trindle Road Camp Hill, Pennsylvania 17011 Telephone: Fax: E-Mail: [717] 975-8114 [717] 975-8124 mbadowski~margolisedelstein-com sbanko~margolisedelstein-com JOAN KICHMAN, Individually and Attorneys for Defendants, James Pastor, M.D. and West Shore Anesthesia Associates, Ltd. : IN THE COURT OF COMMON PLEAS as the Executrix of the Estate of CHARLES KICHMAN, Deceased PLAINTIFF, VS. JAMES PASTOR, WEST SHORE ANESTHESIA ASSOCIATES, LTD., ROBERT P. LONERGAN, LONERGAN ORTHOPEDICS, HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, DEFENDANT OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DOCKET NO. 02 2196 Civil JURY TRIAL DEMANDED PRAECIPE TO ENTER APPEARANCE TO THE PROTHONOTARY OF CUMBERLAND COUNTY, pENNSYLVANIA: Kindly enter my appearance on behalf of Defendants, JAMES PASTOR and WEST SHORE ANESTHESIA ASSOCIATES, LTD., in the above- captioned matter. MAR~!I S EDELSTEIN B OWS STEPH~N L. BANKO, JR. Attorney for Defendants, JAMES PASTOR and WEST SHORE ANESTHESIA ASSOCIATES, LTD. C~TIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing on all counsel of record by placing the same in the United States mail at Camp Hill, Pennsylvania, first-class postage prepaid, on the ~% day of ~ , 2002, and addressed as follows: Wayne R. Spivey, Esquire Paul Bucci, II, Esquire SHRAGER, S?IVEY & SACHS 32n~ Floor, Two Commerce Square 2001 Market Street Philadelphia, PA 19103 (Counsel for Plaintiff) Robert P. Lonergan, M.D. Longeran Orthopedics 207 House Avenue, %105 Camp Hill, PA 17011 Craig A. Stone, Esquire METTE, EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (Counsel for Holy Spirit Hospital) MARGOLIS EDELSTEIN By: Parale~l - 2 - PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court: JOAN KICHMAN, Individually and as the Executrix of the Estate of CHARLES KICHMAN, Deceased PLAINTIFF, VS. JAMES PASTOR, WEST SHORE ANESTHESIA ASSOCIATES, LTD., ROBERT P. LONERGAN, LONERGAN ORTHOPEDICS, HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DOCKET NO. 02 2196 Civil JURY TRIAL DEMANDED State matter to be argued (i.e., plaintiff.s motion for new trial, defendant.s demurrer to complaint, etc.): Preliminary Objections of Defendants, James Pastor and West Shore Anesthesia Associates, Ltd. Identify counsel who will argue the case: (a) Plaintiff (s) : (b) Defendant (s): Wayne R. Spivey, Esquire Paul Bucci, II, Esquire SHRAGER, SPIVEY & SACHS 32n~ Floor, Two Commerce Square 2001 Market Street Philadelphia, PA 19103 Michael M. Badowski, Esquire. Shaun J. Mumford, Esquire MARGOLIS EDELSTEIN P.O. Box 932 Harrisburg, PA 17108-0932 3. I will notify all parties tha~ this case has been listed for argument. 4. Argument Court Date: /~~ 24, 2002 May 22, 2002 ~/~f'~ I (717} 975-8114 Date Shaun J. ~um~ord, Esquire Phone Number Attorney for Defendant CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing PRAECIPE FOR LISTING CASE FOR ARGUMENT on all counsel of record by placing the same in the United States mail at Camp Hill, Pennsylvania, first-class postage prepaid, on the ~3~ day of ~ , 2002, and addressed as follows: Wayne R. Spivey, Esquire Paul Bucci, II, Esquire SHRAGER, SPIVEY & SACHS 32n~ Floor, Two Commerce Square 2001 Market Street Philadelphia, PA 19103 (Counsel for Plaintiff) Craig A. Stone, Esquire METTE, EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (Counsel for Holy Spirit Hospital) Robert P. Lonergan, M.D. Longeran Orthopedics 207 House Avenue, #105 Camp Hill, PA 17011 By: MARGOLI S EDELSTEIN Secretar~~ PHILADELPHIA OFFICE THE CURTIS CENTER FOURTH FLOOR INDEPENDENCE SQUARE WEST PHILADELPHIA, PA 19106-3304 215-922-1100 FAX 215-922-1772 PI'I-I'SBURGH OFFICE 1500 GRANT BUILDING PITTSBURGH, PA 15219-2203 412-281-4256 FAX 412-642-2380 WRITER: SHAUN J. MUMFORD, ESQUIRE DIRECT E-MAIL: smumford@margolisedelstein.com MARGOLIS EDELSTEIN ATTORNEYS AT LAW POST OFFICE BOX 932 HARRISBURG, PA 17108-0932 STREET ADDRESS: 35t0 TRINDLE ROAD CAMP HILL, PA 17011 717-975-81 t4 FAX 717-97,~8124 May 23, 2002 DELAWARE COUNTY OFFICE 216 SOUTH ORANGE STREET MEDIA, PA 19063 610~565-8311 FAX 610-565-8318 NEW JERSEY OFFICE P.O. BOX 2222 216 HADDON AVENUE WESTMONT, NJ 08108-2886 856-858-7200 FAX 856-858-1017 SCRANTON OFFICE THE OPPENHEIM BUILDING 409 LACKAWANNA AVENUE SUITE 3C SCRANTON, PA 18503 570-342-4231 FAX 570-342-4841 Cumberland County Prothonotary, s Office c/o Irene Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Re: Kichman v. Pastor, et al. Docket #02-2196 Civil Our File #57300.4-00149 Dear Irene: Pursuant to your telephone conversation with my secretary on May 23, 2002, enclosed please find an original and two copies of an amended Praecipe for Listing Case for Argument (executed original). Please file the original and return a time-stamped copy to me in the enclosed postpaid envelope Thank you for your assistance. · Shaun ~ Mumford SJM/dlp Enclosure Wayne R. Spivey, Esquire (w/eric1) Craig Stone, Esquire (w/encl) Robert p. Lonergan, M.D. (w/encl) SHERIFF'S RETURN - REGULAR CASE NO: 2002-02196 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KICHMAN JOAN A ET AL VS PASTOR JAMES ET AL RICHARD SMITH , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY the DEFENDANT , at 1030:00 HOURS, on the 8th day of May at 503 NORTH 21ST STREET , 2002 CAMP HILL, PA 17011 by handing to GWYN BINNER, ADMIN SEC a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this /~ ~ day of  ~2 ~3 ~2~ A.D. /P~0thonotary So Answers: R. Thomas Kline 05/09/2002 SHRAG~:SP~ D~p~ty ~heriff SHERIFF'S RETURi~ CASE NO: 2002-02196 P COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND KICHMAN JOAN A ET AL VS PASTOR JAMES ET AL - REGULAR RICHARD SMITH , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon PASTOR JAMES the DEFENDANT at 503 NORTH 21ST STREET , at 1030:00 HOURS, on the 8th day of May , 2002 CAMP HILL, PA 17011 by handing to GWYN BINNER, ADMIN SEC a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 10.35 Affidavit .00 Surcharge 10.00 .00 38.35 Sworn and Subscribed to before me this /~ day of -~/t~ ~ Od )-~ A.D. I ~Srothonotary So Answers: R. Thomas Kline 05/09/2002 By: ~ / ~puty~4Sheriff SHERIFF'S RETURN - REGULAR CASE NO: 2002-02196 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KICHMAN JOAN A ET AL VS PASTOR JAMES ET AL RICHARD SMITH , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon WEST SHORE ANESTHESIA ASSOCIATES INC the DEFENDANT at 503 NORTH 21ST STREET , at 1030:00 HOURS, on the 8th day of May , 2002 CAMP HILL, PA 17011 GWYN BINNER, ADMIN SEC by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff'.s Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this /0 ~ day of ~l 0~32-3 A.D. ;Prothonotary So Answers: R. Thomas Kline 05/09/2002 SHRAGERBy: SPI~ SHERIFF' S RETURN - CASE NO: 2002-02196 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KICHMAN JOAN A ET AL VS PASTOR JAMES ET AL REGULAR SHAWN HARRISON , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to says, the within COMPLAINT & NOTICE was served upon LONERGAN ROBERT P the DEFENDANT , at 1035:00 HOURS, on the 8th day of May at 207 HOUSE AVENUE #105 , 2002 CAMP HILL, PA 17011 by handing to KATHY UDIT, BUSINESS MANAGER a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service 10.35 Affidavit .00 Surcharge 10.00 .00 26.35 Sworn and Subscribed to before me this /~ day of ~n~ ~oo2~ A.D. iP~othonotary . So Answers: R. Thomas Kline 05/09/2002 SHRAGER SPIVEY SACHS ~ut~ S~leriff SHERIFF'S RETURN - CASE NO: 2002-02196 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KICHMAN JOAN A ET AL VS PASTOR JAMES ET AL REGULAR SHAWN HARRISON , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to says, the within COMPLAINT & NOTICE was served upon LONERGAN ORTHOPEDICS the law, DEFENDANT , at 1035:00 HOURS, on the 8th day of May at 207 HOUSE AVENUE #105 2002 CAMP HILL, PA 17011 by handing to KATHY UDIT, BUSINESS MANAGER a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this /7~ day of ! ~rothonotary ' / ~ So Answers: R. Thomas Kline 05/09/2002 SHRAGER SPIVEY SACHS By: ~ THOMAS, THOMAS & HAFER, LLP By: Joseph P. Haler, Esquire Attorney LD. No. 07186 Hugh P. O'Neill, m, Esquire Attorney LD. No. 69986 P.O. Box 999 Harrisburg, PA 17108 (717)25~-7613 Attorneys for Defendant: JOAN A. KICHMAN, Individually and as the Executrix of the Estate of CHARLES C. KICHMAN, Deceased, Plaintiff, JAMES PASTOR, WEST SHORE ANESTHESIA ASSOCIATES, LTD., ROBERT P. LONERGAN, LONERGAN ORTHOPEDICS and HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, Defendants. PRAECIPE FOR ENTRY Robert Po Lonergan COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL DIVtSION No. 02-2196 JURY TRIAL DEMANDED OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of Joseph P. Hafer, Esquire and Hugh P. O'Neill, m, Esquire as counsel for Defendant Robert P. Lonergan in the above captioned/~ter. J~H~e?,/l~squire J~. ~1o~7/486~_/ _ . /Hugh ~. ~'Neill, m, Esquire / Attoj~fie~/I.D. No. 69986 / P.~. Box 999 [ Jfl/arrisburg, PA 17108-0999 ~Phone: (717) 237-7100 Attorneys for Defendant Robert P. Lonergan CERTIFICATE OF SERVICE I, Vicki A. Bolinger, an employee of the law offices of Thomas, Thomas & Hafer, LLP, do hereby certify that I served a copy of the foregoing document by depositing the same in the United States mail, first class, postage prepaid, as follows: Wayne R. Spivey, Esquire V. Paul Bucci, II, Esquire Shrager, Spivey & Sachs 32na Floor, Two Commerce Square 2001 Market Street Philadelphia, PA 19103 Michael Badowski, Esquire Margolis Edelstein P.O. Box 932 Harrisburg, PA 17108-0932 Craig Stone, Esquire Mette, Evans & Woodside 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 Date: 5/30/02 VICKI A. BOLINGER (~ MICHAEL M. BADOWSKI, ESQUIRE Pa. Supreme Court I.D. No. 32646 SHAUN J. MUMFORD, ESQUIRE Pa. Supreme Court I.D. No. 84176 MAR~OLIS EDELSTEIN 3510 Trindle Road Camp Hill, Pennsylvania 17011 Telephone: Fax: E-Mail: [717] 975-8114 [717] 975-8124 mbadowski~margolisedelstein.com Attorneys for Defendants, James Pastor, M.D. and West Shore Anesthesia Associates, Ltd. JOAN KICHMAN, Individually and as the Executrix of the Estate of CHARLES KICHMAN, Deceased PLAINTIFF, VS. JAMES PASTOR, WEST SHORE ANESTHESIA ASSOCIATES, LTD., ROBERT P. LONERGAN, LONERGAN ORTHOPEDICS, HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DOCKET NO. 02 2196 Civil JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF DEFENDANTS, JAMES PASTOR, M.D. AND WEST SHORE ANESTHESIA ASSOCIATES, LTD., TO PLAINTIFF'S COMPLAINT AND NOW, comes the Defendants, James Pastor, M.D. and West Shore Anesthesia Associates, Ltd. (collectively referred to as "Dr. Pastor"), by and through their counsel, Margolis Edelstein, and preliminarily object to the Complaint of Plaintiff, Joan Kichman, Individually and as Executrix of the Estate of Charles Kichman, Deceased (hereinafter "Plaintiff"), averring the following in support thereof: 1. On May 3, 2002, Plaintiff filed a Complaint alleging medical negligence and battery against various medical providers, including Dr. Pastor. A copy of Plaintiff's Complaint is attached hereto as Exhibit "A." Dr. Pastor was served with Plaintiff's Complaint on 2 o May 13, 2002. 3. In Plaintiff's Complaint, the following factual allegations are made with respect to Dr. Pastor: A. On or about May 15, 2000, Mr. Kichman was taken to an operating room at Holy Spirit, whereupon Dr. Lonergan, as the orthopedic surgeon, and Dr. Pastor, as the attending anesthesiologist, performed an open reduction and internal fixation of the right femoral fracture and revision of the right total knee replacement. B. For this surgical procedure, Mr. Kichman was placed under general anesthesia and had an opening blood pressure recorded at 200/100. Arterial blood pressure monitoring was not used. C. Shortly after the surgical procedure was initiated, there was a period of hypotension that lasted for more than 15 minutes which was treated with ephedrine 10 mg and 10 D. Subsequently, during the surgical procedure, there was another period of hypotension that exceeded 45 minutes which was also treated with ephedrine 10 mg and 10 E. Postoperatively, Mr. Kichman suffered an ischemic stroke from which he did not recover. Consequently, Mr. Kichman died on May 28, 2000. Exhibit A, ~21-25. 4. Pennsylvania Rule of Civil Procedure No. 1028 states in relevant part: -2- (a) Preliminary objections may be filed by any party to any pleading and are limited to the following grounds:... (2) failure of a pleading to conform to law or rule of court...; (3) insufficient specificity in a pleading; (4) legal insufficiency of a pleading (demurrer) .... I. DEMURRER/MOTION TO STRIKE PURSUANT TO Pa.R.C.P. No. 1028(a) (4) PERTAINING TO PLAINTIFFS' CLAIMS FOR FAILURE TO OBTAIN INFORMED CONSENT 5. The foregoing paragraphs are incorporated herein by reference as if set forth more fully herein. 6. In Paragraph 32 of Plaintiff's Complaint, Plaintiff brings a claim against Dr. Pastor for a medical battery upon Mr. Kichman for (1) failing to inform him of the risks and potential for complications prior to obtaining his consent to perform the surgical procedure and {2) failing to inform him of the alternatives to the surgical procedure he performed upon him, or alternative means of performing the procedure he performed, before obtaining his consent to perform such a procedure. 7. As mentioned above, Dr. Pastor is alleged to be the attending anesthesiologist for the surgery performed on Mr. Kichman on May 15, 2000, and did not perform the surgery in question. -3- 8. In 1997, the Pennsylvania legislature codified the law of informed consent in the Healthcare Services Malpractice Act (~Act") which places a duty upon a physician to obtain the informed consent of a patient prior to "performing surgery, includinq the related administration of anesthesia." (Emphasis added) 40 P.S. 1301.811-A(a) (1) . 9. The plain, unambiguous language of the Act clearly places the burden of explaining the risks and alternatives of anesthesia upon the physician performing the attendant surgery. 10. Therefore, Dr. Pastor, as an anesthesiologist, was not required by Pennsylvania law to obtain Mr. Kichman's informed consent for the administration of anesthesia. 11. Furthermore, the doctrine of informed consent is limited in its applicability to cases involving surgical or operative medical procedures and is not expanded to include cases involving solely the administration of drugs. See Morgan v. MacPhail, 550 Pa. 202, 704 A.2d 617 (1997). WHEREFORE, Defendants, James Pastor, M.D. and West Shore Anesthesia Associates, Ltd., respectfully requests that their Preliminary Objections be sustained, and Paragraph 32 of Plaintiff's Complaint be stricken. -4- II. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE PURSUANT TO Pa.R.C.P. No. 1028(a) (3) LACK OF FACTUAL SPECIFICITY - Pa.R.C.P. No. 1019(a) 12. The foregoing paragraphs are incorporated herein by reference as if set forth more fully herein. 13. In Paragraphs 5, 12 and 16 of Plaintiff's Complaint, reference is made to the "agents, servants and or employees" of Defendants without further description of the same. 14. It has been held that a complaint must not only give the defendant notice of what the plaintiff's claim is and the grounds upon which it rests, but also must formulate the issues by summarizing those facts essential to support the claim. Baker v. Ranqos, 2.29 Pa. Super. 333, 324 A.2d 498 (1974). 15. At the very least, a complainant must allege facts which: (1) Identify the agent by name or appropriate description; (2 Set forth the agent's authority, and how the tortious acts of that agent fall within the scope of that authority. Alumni Association, et al. v. Sullivan, 369 Pa. Super. 596, 535 A.2d 1095 (1987). 16. Without further facts to substantiate the identity of the "agents, servants, and/or employees" identified in Paragraphs 5, 12 and 16 of Plaintiff's Complaint, who allegedly committed negligent acts, Dr. Pastor is without notice as to what -5- the Plaintiff's claims are and the grounds upon which they are based. WHEREFORE, Defendants, James Pastor, M.D. and West Shore Anesthesia Associates, Ltd., respectfully request this Honorable Court to enter an order striking the foregoing paragraphs of Plaintiff's Complaint, or, alternatively, order Plaintiff to file a more specific pleading addressing the identity of the "agents, servants, and/or employees" so as to adequately inform Defendants of the factual issues and theories of liability they must be prepared to meet in their defense at trial. III. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE PURSUANT TO Pa.R.C.P. No. 1028(a) (3) LACK OF FACTUAL SPECIFICITY - Pa.R.C.P. No. 1019(a) 17. The foregoing paragraphs are incorporated herein by reference as if set forth more fully herein. 18. In Paragraph 30 of Plaintiff's Complaint, Plaintiff sets forth allegations of negligence against four different Defendants, making it impossible to ascertain which allegations of negligence specifically refer to Dr. Pastor and/or West Shore Anesthesia Associates, Ltd.. 19. Additionally, Paragraph 30 states that "the negligent conduct.., included the followinq:", inferring that there is alleged negligent conduct'which has not been included in Plaintiff's Complaint (Emphasis added). -6- 20. If the language set forth above is allowed to remain, then Plaintiff may have the opportunity to amend her Complaint to introduce new theories of negligence after the applicable statute of limitations has run, all to the severe prejudice of Dr. Pastor and/or West Shore Anesthesia Associates, Ltd.. See Connor v. Alleqhen¥ General Hospital, 501 Pa. 306, 461 A.2d 600 (1983). WHEREFORE, Defendants, James Pastor, M.D. and West Shore Anesthesia Associates, Ltd., respectfully request this Honorable Court to enter an order striking the foregoing paragraph of Plaintiff's Complaint. Date: ~/~ ~-/0 P- By: Respectfully submitted, M_ARGOLIS EDELSTEIN SHAUN J. MUMFORD Attorneys for Defendants, JAMES PASTOR and WEST SHORE ANESTHESIA ASSOCIATES, LTD P.O. Box 932 Harrisburg, PA 17108-0932 (717) 975-8114 -7- CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing PRELIMINARY OBJECTIONS OF DEFENDANTS, JAMES PASTOR, M.D. AND WEST SHORE ANESTHESIA ASSOCIATES, LTD., TO PLAINTIFF'S COMPLAINT on all counsel of record by placing the same in the United States mail at Camp Hill, Pennsylvania, first- class postage prepaid, on the ~day of ~ , 2002, and addressed as follows: Wayne R. Spivey, Esquire Paul Bucci, II, Esquire SHP~AGER, SPIVEY & SACHS 32nd Floor, Two Commerce Square 2001 Market Street Philadelphia, PA 19103 (Counsel for Plaintiff) Craig A. Stone, Esquire METTE, EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (Counsel for Holy Spirit Hospital) Robert P. Lonergan, M.D. Longeran Orthopedics 207 House Avenue, #105 Camp Hill, PA 17011 MARGOLIS EDELSTEIN By: ~ ~e~creta~r0y~~ shrager, Spivey & Sachs By: Wayne 1~ Spivcy, Esq-~,'¢/V. Paul Bucci, II, Esquire Idemtification Numbers: 31017/87394 32nd Floor, Two Commcrc~ Sq,,~re 2001 Mzrl~:t Street Philadelphia, P~msylvania 19103 (215) 568-7771 JOAI~ A. Ir~ICI-IMA.N, Individually arid as the Executrix of the Estate of CHARLES C. KICHMAH, Dec'd 356 Old Stage Road Lcwisberry, p.A. 17339 Pl~in~ff VS. JABAES ]~ASTOi~ 503 N. 21~ Str~et C~np Hill~ PA 17011 and ~ST SHO~ ASSOC~S, LTD. 503 N. 21'~ S~eet C~p ~ PA 17011 ~d ROBERT P. LO~~ 207 Ho~e Av~ue: ~105 ~p ~ill~ PA 17011 ~d LONE~ O~O~I~ 207 ~ot~¢ Aven~, ~105 Crop F~H, PA 17011 ~ ~OLY SP~ ~OSP~ OF ~ SIS~ OF C~ST~ C~ 503 N. 21't S~eet Crop F~ll~ PA 17011 D~m : CIVrr. DMSION CUMBERLAND COUN'I~ COURT OF COMMON PnR~ No.: : : Exhibit A Shrager, Spi ey & Sachs By: W~ync R. Spivcy, Esquk¢/V. P~ul Bucci~ ]], Esqukc Idcmi/ication Numbers: 31017/8739~ 32nd Floor, Two Commerce Sq,~e 2001 Mark_cc &met Phil~d¢lphia: Pcrmsylvanh 19103 (215) 568-7771 JOAN A. KICHM , Individua"y and as thc ExccuttLx of thc Estat~ of CHARLES C. KICH2dAN, Dedd 356 OM Stage l~oad Lewisbcrry, PA 17339 ?l~Lntiff JAMES PASTOK 503 N. 21" Street Camp ~--~il!, PA 17011 and V~EST $I-IORE ASSOC~, L~. 503 N. 21~ S~eet Crop ~ PA 17011 md KOBEKT P. LO~K~ 207 Home Av~, ~I05 ~p ~, PA 17011 ~d LO~KG~ OK~OPEDICS 207 Home Av~, ~I05 C~p H~, PA 17011 md HOLY SP~T HOSP~ OF SIS~R~ OF C~S~ C~ 503 N. ~p H~ PA 17011 CUMBERLAND COUNTY COUllT O~V COMMO1V PLrlAS CIVIL DMSION No.: C. IIzlT.,.A CTIO~T CO.i?IPr..4 Plaintiff, by hex a~r~, S~g~, Spiv~ & S~, h~cby ~=,& d~a~ of ~d~ nu ~ jo~y ~ sexy, for a ~ ~ ~s ofE~ Thom~d DoR=s ($50,000.00), ~dmiv¢ of ~tex~g cos~, ~d damag~ for prej~t delay upon ca~ of ~don whcr~f ~c fo~w~g ~c 1. PI:~-~ ~om ~ I~ ~ ~t M~d~, ~ a ci~n of ~c Commonwc~ o, Pen~l~ r~i~g ~c~ ~ 356 O~ S~ ~a~ ~~. S~ ~ ~c d~y appo~t~ Exe~r~ of ~ Esmm of ~1~ G. ~ ~ce~ed (h~ex r~e~ to = ~r. I~~), ha~g b~ appoM~d same by ~c ~r of W~ of York ~ on Fcbm,:~ 19 2002. M~Md~ ~ a d~ ~d r~ident of ~ ~onw~ ofP~l~a ~d at'~ Hm~ rel~ hcr~o h~ b~ ~d ~ ~ practice ofme~c wi~ ~ o~ ~d place of bmM~s loca~d at S0~ N. 21~ S=~t, C~p ~ P~yl~. ~. At ~ ~s p~t hexcto, Dr. P~tor w~ ~g~ M ~c pracd~ of me~c, p~s~g ~c sp~W of ~olo~, ~ ~ ob~ m brMg m be= M ~e pmcdcc of~ prof~ion ~e pmf~sio~ s~, ~owled~ md ~p~i~c~ wM~ ~ poss~scd or w~ obH~d to poss~,'~d to p~ ~ p~&ssion M ~or~e w~ re~o~bly s~c ~d acceptable s~=& o meffi~e, M gmc~, ~ m~iolo~, ~ p~c~ar. 4. D~%.~H~t, gr~t Shore An~ A~sociates, Ltd. (hereinafter refcrr~ m ~ ~t Shorc~), h a corporate md~, or,d ~ ~g ~r ~c hws of ~1~, wi~ m o~c ~ p~cc ofb~ ~d ~ SOS N. 21~ S~, C~p Hil~, P~yl~n~_ 5. At ~ ~ pc~mt h~o, Wcst Shore ac~ ~o~ ~m agmu, scum, m~or ~ploy~, ~l~g Dr. P~mr, ~ conj~cdon ~ ~c c~c r~crcd ~ ~. ~m. At ~ rim~ p~mt hereto, ~c agm~, sc~m~, m~or ~plo~ of W~t Shmrc wcrc ~g wi~ ~ co~s: md s~p: of ~:~ ~plo~mt, ag~, or appoint agen~ ~ coniston wi~ ~e c~ rm~red m ~. I~c~m. 6. D~g ~b~ P. ~ner~ (herder r~err~ m m "Dr. Loner,S), m adu hereto ~s bern m~d ~ me pm~ce of m:~: wi~ m o~ce md plac: of b~ss loca~d a 207 ~o~e Avmm ~10S, C~p ~, P~yl~a. 7. At ~ ~es per, tnt her~, Dr. Loner~ wm m~g~ ~ ~e pm~ce of me~e p~s,~ng ~: sp:~ of o~ope~c s~ge~, md w~ obH~d m br~g m be~ ~ ~e pmc6ce of M profession ~: prof~sion~ s~il[% ~owl~ md :~erimce w~ he possessed or was obliged m poss~, md m p~ ~ profusion ~ accorH:~ wi~ r~ombly s~: md accepmble st~ o 8. It ~ b~ ~ ~r~or: ava'red ~at ~% ~n~ O~op:~cs, ~ a corpomm mdV, or~ md ~g ~r ~ laws ofP~ylv~ wi~ m o~cc md p~ce o b~s locamd at 207 Ho~e A~n~ ~10S, Omp ~ P~ylv~a. 9. At all times pertinent hereto, Lonergan Orthopedics acted through its agents, servants, and/or ~mployees, kmluding Dr. Lonergan, in conjunction with the care rendered to Mr Kichman. At all times pertinent hereto, the agents, servants, and/or employees of Lonergan Orthopedics were acting within the eom'se and scope o£ their employment, agency, or apparent agency in conj~ncdon with thc care rendered to Mr. Kichman. 10. Defendant, Ho~y Spirit Hospital of thc Sisters of Christian Charity (hereinafter rc£crrcd to as '~-~oly Spirif'), is a corporation, organ/zed and existing under and purs-~ut to thc · laws of the Commonwealth o£]?ennsylvania and at ~ times pexthacnt hereto was operat~r~g a hospital at 503 ~q. 21th Street, Camp Hfl/, Pennsylvania. iI. At all times pertinent h~'eto, Holy Spirit held itself out in thc cormnunity as bcing full service medical cam ~r~titution, properly extuippcd and staffcd, and rendering q~l~ty medical care, acting through its dcpa~u~cnts, medical groups, staff members and other agents, sen~ants an 12. Thc agents, servants and employees of West Shore included Dr. Pastor as wcll as ~ other medical treatment providers employed by West Shore who rcndercd, or undertook to rcnd¢ medical care and trcatmcnt to Mr. Kichrnan as set forth below. 13. Thc agents, servants and cmployccs of Lonergan Orthopedics included Dr. Lonergan as we. Il as any other medical t~cauncnt providers crnploycd by Lonergan Orthopedics who rendcrcd~ or undertook to tender, medica~ carc and trcatment to Mr. Kichman as set forth below. 4 14. The acttml or os~nslble agents, servants and employees of Holy Spirit included Dr. Pastor and Dr. Lonergan, as well as any other medical treatment providers employed by Holy Spirit who rendered, or undertook to render, medical care and ~eatment to plair~ti~s decedent from May 1~i, 2000 through, and including, May 28, 2000. The specific acts of negligence that these actual or ostensible agents, servants and employees committed within thc scope o£ said agency are described in demi! below. · 15. Defend~nts~ Dr. Pastor and Dr. Lonergarg West Shore Anesthesia Associates, Lonerg~n Orthopedics and ttoly Spizig each presently treat patients in Cumberland County, and thus regularly conduct business therein, withir~ the meaning Of' the Pennsylvania thules of Civil P~ocedure. 16. At ail tim~ pertinent hereto, all defends,ts had a medical treater/patient rel~tiormhi with Mr. Kichman; said dcfenel~ts rendered and/or undertook to render medical treatment and care to Mr. Kichrnarg individ-nlly and/or acting through their acmn! or ostensible agents, servant and employees. Dcf~d~-ts, therefore, had a legal duty to render such medical treatment and care in accordance with accepted s~nd~rds of medicine. ].7. At the time of the events g~vLug rise to this actinrg pl~iqtifF and her decedent were citizens, residents and domiciliaries of thc Commonwealth of' Pennsylvania; decedent was a citizer resident znd domicilia.qr of the Commonwealth o£P~-nmylvania at the Hme of his death. FACTUAL BACKGi~OUND 18. Oa or abou~ May 14, 2000, Mr. I(ichm~ sus~ined ~u injury to his ri~t icg and knee when he accidentally stepped hato a mole or groundhog hole in his yard. Mr. Kichman had prior medical h/story which included coronary artery disease, hypertension, hyperlipidemia, and a right total knee replacement approximately five years earlier. 19. At that Hme, Mr. Kichmaa was tramported, via ambulance, to thc Emergency Department at Holy Spirit whereupon X-rays revealed that he had sustained a spiral, comminuted fracture through his distal femur which involved the proximal ~ of thc r~ision prosthesis of thc total knee rcptac~-ment. 20. On or about May 15, :2000, Mr. Kichmm was admitted by Dr. Loncrgan to Holy Spirit for definitive care and treatment of hi.~ injuries. 2I. On or about May 15, 2000, Mr. Kichman w'as takc. n to an operat/ng room at Holy Spirit, whereupon Dr. Loncrgan; as she orthopedic surgeon, and Dr. Pastor, as thc attending anesthesiologist, performed an opm reduction and intcrm/fixation of thc right femoral fracture and rev/sion o£ thc right total kncc replacement. 2~2. 1:or th/s surgical procedure, Mr. Kichnaan was placed undcr general ancsthcsia and had an opening blood pressure recorded at 200/100. Art~ri~ blood pressure monitoring was not used. 23. Shortly af-~r thc surgical procedure was injured, there was a period of hypotcmior that lasted for morc than 15 minutes wh/ch was tr~tcd with ephedr/n¢ 10mg and 10 mg. 24. Subsequently, during the surgical procedure, there was another period o£ hypotensioa that exceeded ~5 m~m,_t~-~ which was al~o treated with ephedrine lOmg and lOmg. 25. Postoperatively, Mr. lGchm~n suffered an ischemic stroke from which he did not recover. Consequently, Mr. Kichraan died on May 28, 2000. 26. The decedent's death was caused by the negligence o£ the defendants, as set.forth in detail below, and was contributed to in no way by the p!~inH~or by the decedent. 27. Mr. Kic. hman was survived by his wife, )'oan A. Kichman, the plainHff'herein, and three (3) adult children who live at the following addresses: Matthew C.' Kichrruan Michael W. Kichman Kandis Marie Heath 355 Old Stage ~ Lewisberry, PA 17339 716-B Ligget Ave. Persidio San Francisco, C_~ 94129 202 Glenwood I~d. 28. 27, above. 29. lif'¢rimc. 30. Relationship To Decedent Son Son Notice of this action Daughter Chapel I4111, NC 27516 has been served upon all of the persom idenritqed in paragraph PlaintitPs decedent brought no clMm for the injuries compbined o£herein during hi The negligent conduct of Dr. Lonergan, Dr. Pastor, Lonergan Orthopedics and West Shore included the £ollowL~g: f~ai.g to ~l=qu,=/y mainuin dec~en='s blood prc~ute durin~ .targa7 in l/gl= of his known hL~,ory o£hypa'?~-~ion md doo,m=r~ cardiovascul= s~atus; ~ilin§ to prevent decedents blood pressure ~rom F.,ing ~o hypot~.nsivc level ~ pe~c~i~Jng decedents blood pressure to rcmsin at hypotensive levels for ~n~,-H pedod~ of time; (c) ~i!!n§ to ~deqmtely mor,itor decedents blood pressure and respond to tJ~ acute period~ ofhypotension; (d) f~illng tO abandon the surgical procedure when prolonged periods of hypotension were encountered; (e) f~illr~g to adequately treat deccdenes hypotensive condition during the coursl of thc surgical procedure with proper medications or medicincs; (0 failing to ~riliT¢ spinal anesthcsia in :t patient with a known history of elevate blood pressure and porenri:! carotid artery disca~; and f. iling to diagnose decedent's carotid artery d;.ease and failing tn properly. take k into considet~tion in treating decedenes hypotension during the cour: of the surgical procedure. 31. In addition to his alleged negligence, Dr. Loncrgan further committed a technical b~ttery upon decedent by: failing to inform the decedent of the risks and potential for compllc,xtiom, prior to ob~irdng his consent to perform thc surgical procedure; and (b) failiqg tO inform the decedent of the alternatives to the surgical procedure he performed upon him, or alternative meam of perfon~ing the procedure he performed, before obtaining his coment to perform such a procedure. 32. In addition to his alleged negligcnce~ Dr. Pastor fu~er committed a technical battery upon dcccdent by: (a) f. illn~ to inform the decedent o£the risks and potend.I £or complicatiom, prior to ob~i-~-~ his coment co perfo~ the mrgical procedure; and f-a~l~g to i~Form thc decedent of the alternatives to the surgical procedure he pefforme~ upon him~ or alternative me~r~ of performing thc procedure he performed~ before obmln~n~ his coment to perform S~ch a procedure. 33. Holy Spirit is vicariously liable for the conduct of its agents, apparent agents, servants and employees who negligently: (b) failed, to adequately maintain decedenes blood pressure during surgery in tight of his known history of hypertension and documented cardiovascular SI~.L'US; failed to prevent decedenes blood pressure from f. lling to hypotensive levels and permitted decedent's blood pressure to remain at hypotensive levels for extended periods of time; (c) failed to adequat~y monitor deced¢_nes blood pressure and respond to the acute periods of hypotemion; (d) f~illng to abandon the surgical procedure when Prolonged periods of hypotension were encountered; (g) f~illng to adequately treat decedent's hypotensive condition during the court, of the surgical procedure with proper medications or medicines; failing to u61;~- spinal anesthesia in a patient with a known history of elevat, blooct pressure and pomntial carotid axxery disease; and failing to diagnose decedent's carotid artery ,~;~ease and. failing to properly take it into consideration in treating decedenes hypotemion during the corn of thc surgical procedure. 34. In addition to being vicariously liable for the conduct of its agents, servants and employees specifically ide~ri~ed in paragraph 31 above, Holy Spirit was itself negligent in the following respects: (a) f~ilirtg tO USe reasonable c~e in the maimemzxc¢ of s~e ~ a~q~ ~c~lifi~ ~ eq~pm~ (b) ~illn~ ~ s~ ~d ~i. o~y compeer ph~id~; (c) fii~i~ m ov~ ~ p~om who p~c~e m~cine wi~ i~ w~ ~ to pa~ ~e; ~ q,,~ c~ for i~ pa~. CO~ I ~ONG~ DEA~ A~ON 35. V~p~ 1 ~o~ 34 ~e h~eby ~co~om~d by tderen~ ~ ~o~ i~y sa ~o~ ~t I~ her~. ~e P~Im W~on~ D~ ~% for ~ ~ono~c ~d o~er ~s~ ~d by s~d ~ ~ medi~ ~d o~er le~y comp~able ~em~ ~sodat~ ~ ~ fm~ ~s. ~B~.~O~, p~, by h~ a~m~, Shr~, Spiv~ & Sa~ hereby d~ ~ag~ o~ dd~d~n~ here~ E a sm ~ ~s off~ ~ommd do~s ($50,000.00), ~mive o{ ~ cos~ ~ ~ag~ ~r p~-iud~t delay. CO~ ~ S~~ A~ON 37. p~g~p~ 1 ~o~h 36 ~e ~reby ~orporated by rde~ce ~ ~o~h ~y set 10 i SS. ]?l~6ff brings this action on behalf o£ r. hc Esr~re of thc d¢ccdcnr, undt. r m~d pursumr ro r. he Pcnnsylvmia Survival Act, for danmgr, s for the pecuni~zy losses s,~-crcd by decedents Estate during thc period of his life expectancy, as well as for the comcious p~in and s~t~¢ring which hc endured as ~ result as r. hc m~sconducr of thc ~¢~n~rs, and for all oth~' Icgall~ compcmablc ~xpcn.~cs incurred in connection with dec, denis illness. WHE~Oll.E, plaind~by hcr attorneys, Shragcr, Spivcy & Sachs, hereby demands a~magcs of thc ddcna~nts hcrch~, jointly md severally, in ~ sum in excess oftifvf thousmd dollars ($50,000.00), cxt. lusiv~ of interest, costs and a~m.~gcs for prc-j,,ag~ucnt dchy. Shrag~r~ Spivey & Sachs Wayne tL Spivcy V. Paul Bucci, II 11 VI~lllI~ICATION Joan A. Iachnmn he. rcby s;atcs r. hat she ~ ~c pt~;~ ~c ~orcgo~g action ~d ~c ~orcgo~g ~v~m~ ~ ~ ~mp~t ~c ~ ~d co,oct m ~c b~t of h~ ~ow~dgc, ~or~on ~d b~. ~ ~c ofs~ a~u ~ ~ of~m~d ~d not p~~ read ~ ~mp!~-~ ~ m ~e ~t ~t k ~ b~ upon ~orm~on w~ she ~ ~ ~ h~ co,~-~ k is ~c md ~ w ~ ~ of her ~owl~ge, i~orm~don ~d bc~d. To ~c ~t ~ ~c ~c of~c ~mp~ ~ ~it of co~ shc h~ r~cd ~ Sta~ ~ ma~ subj~ ~ ~c p~ of 18 Pa. C.S. Scion t904, -n.~wom Palsiflcation w authofit/cs. JOAN A. KICHMAN, Individually and as the Executrix of the Estate of CHARLES C. KICHMAN, Dec'd, Plaintiff Vo : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : : NO. 02-2196 JAMES PASTOR, WEST SHORE : ANESTt~SIA ASSOCIATES, LTD., : ROBERT P. LONERGAN, : LONERGAN ORTHOPEDICS, and : HOLY SPIRIT HOSPITAL OF : THE SISTERS OF CHRISTIAN : CHARITY, : Defendants : CML ACTION - LAW NOTICE TO pT,~..AD TO: Joan A. Kichman, Individually and as the Executrix of the Estate of Charles C. Kicbman, Dec'd, Plaintiff c/o Wayne R. Spivey, Esquire V. Paul Bucci, II, Esquire Shrager, Spivey & Sachs 32nd Floor, Two Commerce Square 2001 Market Street Philadelphia, PA 19103 You are hereby notified to file a written response to Defendant's Preliminary Objections to Plaintiffs Complaint within twenty (20) days from service hereof or a judgment may be entered against you. Dated: June 6, 2002 METTE, EVANS & WOODSIDE ~teven D. Snyder, Esquire Sup. Ct. I. D. #34344 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendant Holy Spirit Hospital :297092 _1 JOAN A. KICHlVIAN, Individually and as the Executrix of the Estate of CHARLES C. KICHMAN, Dec'd, Plaintiff Vo JAMES PASTOR, WEST SHORE ANESTHESIA ASSOCIATES, LTD., ROBERT P. LONERGAN, LONERGAN ORTHOPEDICS, and HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-2196 CML ACTION - LAW : PI!ELIMINARY OBJECTIONS OF DEFENDANT, HOLY SPIRIT HOSPITAL, TO PLAINTIFF'S COMPLAINT The defendant, Holy Spirit Hospital, by its attorneys, Mette, Evans & Woodside, preliminarily objects to the plaintiffs complaint as follows: 1. On May 3, 2002, plaintiff filed a complaint alleging negligence on the part of the various defendants in connection with medical care and treatment rendered to plaintiffs decedent. A true and correct copy of plaintiff's complaint is attached hereto as Exhibit "A". MOTION TO STR~, OR, IN THE ALTERNATIVE, FOR A MORE SPECIFIC COMPLAINT 2. In paragraph 34 of the complaint, and subparagraphs thereunder, the plaintiff purports to allege negligence on the part of Holy Spirit Hospital. Paragraph 34 provides as follows: 34. In addition to being vicariously liable for the conduct of its agents, servants and employees specifically identified in paragraph 31 above, Holy Spirit was itself negligent in the following respects: (a) failing to use reasonable care in the maintenance of safe and adequate facilities and equipment; (b) failing to select and retain only competent physicians; (c) failing to oversee all persons who practice medicine within its walls as to patient care; and (d) falling to forinulate, adopt and enforce adequate rules and policies to ensure quality care for its patients. (See Exhibit "A," pages 9-10.) 2 4. The averments set forth in paragraph 34 of the complaint purport to set forth corporate negligence theories of liability against Holy Spirit Hospital. 5. The averments of negligence set forth in paragraph 34, however, are nothing more than a verbatim recital of the duties of a hospital as expressed by the Pennsylvania Supreme Court in Thomoson v. Nason HosvitaL 527 Pa. 330, 339-340, 591 A.2d 703, 707 (1991). 6. The aver~-,-,ents set forth in paragraph 34 are simply bald assertions of a breach of the general duties of a hospital as identified by the Pennsylvania Supreme Court. 7. Paragraph 34 of the plaintiff's complaint, however, fails to set forth any factual basis for the alleged breach of any of the four duties recognized in Thompson. 8. Paragraph 34 fails to set forth with particularity and specificity the factual basis for the allegations contained therein and, therefore, fails to comply with law and rules of court. WHEREFORE, defendant, Holy Spirit Hospital, requests that paragraph 34 of the complaint be stricken or, in the alternative, that the plaintiff be directed to specifically set forth the facts in support of her clolms in paragraph 34. Respectfully submitted, METTE, EVANS & WOODSIDE ~ - - Esl~ ire Sup. Ct. I. D. #34344 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendant Holy Spirit Hospital Date: June 6, 2002 Shrag r, Spiv y & Sachs By: Wayne R. Spivey, Esquire/V. paul Bucci, II, Esquire Identification Numbers: 31017/87394 32nd Floor, Two Commerce Square 2001 Market Street Philadelphia, Pennsylvania 19103 (215) 568-7771 Executrix of the Estate of : : cUMBERLAND COUNTY CHARLES C. y4CItMAN, Dec'd 356 Old Stage Road Lewisberry, PA 17339 Plaintiff : GOURY OF GO2Vi~OiV pr, RAS : No.: VS. : JAMES PASTOR : 503 N. 21" Street : Camp Hill, PA 17011 and WEST SHORE ANESTHESIA : ASSOCIATES, LTD. : 503 N. 21" Street : Camp Hill, PA 17011 and ROBERT P. LONERGAN : 207 Home Avenue, #105 : Camp Iq]Il, PA 17011 and LONERGAN ORTI-IOPEDICS : 207 Home Avenue, #105 : Camp Hill, PA 17011 and : HOLY SPIBAW HOSPITAL OF THB : sISTERS OF CHRISTIAN CHARITY : 503 N. 21`= Street : Camp PI~ PA 17011 Defendants : : CIVIL DM$IOI¢ NOTICE You have bcon sued ia court. If you wish to flcfcnd a~inst thc claims set fo~.h ~s, ou muat take action within ewent7 (110) days ~ this ia the foil--s pa~. y ...... ~-~ a va'istco appearance .p~. on.~y _. ~.. atcorae~ anti filin$ m writing ""'~ --- f -. -. :v.,~. fall to do so the to thc dmms set r°wr'" ''l~' :- ~ :..a~cotmavbecnt~redagain~ty°uoY case may proceed ' · - -, mone~ claimed in the complaint of for the court without fu~,hc£ horace tot any · aa}' other claim or reliaf rcque~ted by the plaintiff. You may lose money o~ property ot other tights important to you. 'YOU SltoULD TAI~ THIS PAPEP- TO YOUP` LAWYI~I~. AT ONCE. I1: YOU DO blOT HAW A LAWYER. O1~ CANNOT AFFORD ONF~ GO TO OB, TBLEPHONE THIS OFFICB SBT Fop`TH BELOW TO FlkXlD OUT WHEILB YOU CA~ GET LEGAL HELP. AVI$O ~ hah fl~mandado a u~ed en la cort'e.. $i ust~d quiere defenfl~ sc de dcmaada$ ex~u~cas en la~ p~$ si~ientes, usted time veinte (20) ~ is d~ plazo forma cscrim ms dcfensa~ o sus objecione~ a la~ dem,~t~ ena persuna. Sea. aviaedo que $1 usted no se defiende, la co~te toma~ aedidaa y puedc con~inu~ ia cl~manda cn contra muya sin pr~vio aviso o Inotificacin. Ad~ns, la corte pued~ dccidir a favor del d~mandantz y r~cltUCr complacontodaslas provisiautsdcestadcmanda' UsudPuedel~ derdinerO o st~ orovi~ct~ u otms dcr~ho' impomut~s _P _~a...~__~.. ~. &=.... SI ' ' DAAT. J~ ABOGADo L~I~,~ · ·LLEVE Bgl'A DEM2~ .... NO TIF.~B ABOGADO O SI NO TIBN~ z.u pAGAIL TA~ SEP-~rlGIO, VAYA F.2,1 PEI~OIqK O' ~ POP- TELFONO A LA OFICllqA CUYA DIILECCIN SR F~UEN~ E~CRITAABAIO pA.RA AVF.1LtGU AB. D OND E SE PUF. DB CONSBGUIP- -.,.,-~, '~-~._ ;~'Cadislc, pennsylvania 17013 Shrag r, Spivey & Sachs By: Wayne R. Spivey, Esquire/V. Paul Bucci, II, Esquke Identification Numbers: 31017/87394 32nd ~loor, Two Commerce Sqmre 2001 Market Street Philadelphia, Pennsylvania 19103 (215) 568-7771 lOAN A. ILIGI-IMAN, Individually and as the Executrix of the Estate of CHARLES G. ILIGHMAlq, Dec'd 356 Old Stage Road Lewisberry, PA 17339 plaintiff VS. JAMES PASTOR 503 lq. 21~ Street Camp Hill, PA 17011 and WEST SHORE ANESTHESIA. ASSOCIATES, LTD. 503 lq. 21~ Street Camp Hill, PA 17011 and ROBERT P. LONERGAN 207 House Avenue, #105 Camp Hill, PA 17011 and LOlqERGAN ORTHOPEDICS 207 House Avenue, #105 Camp Hill, PA 17011 and HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY 503 N. 21'~ Street Camp Hill, PA 17011 Defendants CUMBERLAND COUNTY CO UtLT OF C02Vi31Olg -PLEA$ CIF1L Di'VISI01¢ No.: : : : : : C/FIL ACT/ON COfVlPLA~ r/s?T~ Plaintiff, by her attorneys, Shrager, Spivey & Sachs, hereby demands damages of defendants herein, joindy and severally, for a sum in excess of Fifty Thousand Dollars ($50,000.00), exclusive of interest, costs, and damages for prejudgment delay upon causes of action whereof the following are statements: 1. Plaintiff, Joan A. Kichman, an adult individual, is a citizen of the Commonweal~ of Pennsylvania, residing therein at 356 Old Stage Road, Lewisberry. She is the duly appointed Executrix of the Estate of Charles C. Kichman, deceased (hereinafter referred to as "Mr Kichman"), having been appointed same by the Register of Wills of York County on February 19, 2002. 2. Defendant, James Pastor (hereinafter referred to as "Dr. Pastor"), an adult individual, is a citizen and resident of the Commonwealth of Pennsylvania and at all times rel{Vant hereto has been engaged in the practice of medicine with an office and place of business locar~d at 503 N. 21th Street, Camp Hill, pennsylvania. 3. At all times pertinent hereto, Dr. Pastor was engaged in the practice of medicine, pursuing the specialty of anesthesiology, and was obliged to bring to bear in the practice of his profession the professional skills, knowledge and experience which he possessed or was obliged to posses, and to pursue Ns profession in accordance with reasonably safe and acceptable standards of medicine, in general, and anesthesiology, in particular. 2 4. Defendant, West Shore Anesthesia Assodates, Ltd. (hereinafter referred to as 'Srfest Shore"), is a corporate entity, organized and existing under the laws of ]?ennsylvania, with an office and place of business located at 503 lq. 21th Street, Camp Hill, Pennsylvania. 5. At all times pertinent hereto, West Shore acted through its agents, servants, and/o? employees, including Dr. Pastor, in coniunction with the care rendered to Mr. I(ichman. At alli times pertinent hereto, the agents, servants, and/or employees of West Shore were acting within the course and scope of their employment, agency, or apparent agency in coniuncti°n with the Care rendered to Mr. I(ichman. ~ 6. Defendant, Robert P. Lonergan (hereinafter referred to as "Dr. Lonergan"), an adult individual, is a citizen and resident of the Commonwealth of Pennsylvania and at all times relevant hereto has been engaged in the practice of medicine with an office and place of business locate4t at 207 PIouse Avenue #105, Camp I4i11, Pennsylvania. 7. At all times pertinent hereto, Dr. Lonergan was engaged in the practice of medicine, purs~tr~g the specialty of orthopedic surgery, and was obliged to bring to bear in the practice Of his profession the professional skills, knowledge and experience which he possessed or was oblige~t to posses, and to pursue his profession in accordance with reasonably safe and acceptable standaids of medicine, in general, and orthopaedic surgery, in particular. 8. It is believed and therefore averred that defendant, Lonergan Orthopedics, is a corporate'entity, organized and existing under the laws of Pennsylvania, with an office and place of business located at 207 House Avenue #105, Camp I-Ii]l, Pennsylvania. 9. At all times pertinent hereto, Lonergan Orthopedics acted through its agents, servants, and/or employees, including Dr. Lonergan, in conjunction with the care rendered to Mr. Kichman. At all times pertinent hereto, the agents, servants, and/or employees of Lonergan Orthopedics were acting within the course and scope of their employment, agency, or apparent agency in conjonction with the care rendered to Mr. Kichman. 10. Defendant, HolY Spirit Hospital of the Sisters of Christian Charity (hereinafter referred to as '~-Ioly Spirif'), is a corporation, organized and existing under and pursmnt to the laws of the Commonwealth of Pennsylvania and at all times pertinent hereto was operating a hospital at 503 Iq. 21th Street, Camp Hi/l, Pennsylvania. 11. At all times pertinent hereto, Holy Spirit held itself out in the community as being a full service medical care institution, properly equipped and sr_~ffed, and rendering quality medical care, acting through its departments, medical groups, staff members and other agents, servantS and employees. 12. The agents, servants and employees of West Shore included Dr. Pastor as well as any other medical treatment providers employed by West Shore who rendered, or undertook to render, medical care and treatment to Mr. trdchman as set forth below. 13. The agents, servants and employees of Lonergan Orthopedics included Dr. Lonergan as well as any other medical treatment providers employed by Lonergan Orthopedics who rendered~ or undertook to render, medical care and treatment to Mr. Kichman as set forth below. 14. Thc aca~al or ostensible agents, servants md employees o£Holy S?kit included Dr. l)astor and Dr. Loncr~an, as well ~s any other medical treatment providers employed by Holy Spk'it who rendered, or undertook to render, medical care ~_nd treatment to plaintifPs decedent from May 14, 2000 through, and including, May 28, 2000. The specific acts of negligence that these act~l or ostensible a§cnts, servants and employees committed within thc scope of said agency are described in detail below. 15. Defendants, Dr. Pastor and Dr. Loncrgan, West Shore Anesthesia Assodates, Lonergan Orthopedics and Holy Spirit, each presently treat patients in Cumberland County, and thus regularly conduct business therein, within the meaning of the Pennsylvania Pules of Civi~ Procedure. 16. At all times pertinent hereto, all defendants had a medical treater/patient relationship with Mr. II(lehman; said defendants rendered and/or undertook to render medical treatment and care to Mr. Kichman, individually and/or acting through their actn~al or ostensible agents, servants, and employees. Defendants, therefore, had a legal duty to render such medical treatment and!care in accordance with accepted standards of medicine. 17. At the time of the events giving rise to this action, plaintiff and her decedent viere citizens, residents and domiciliaries of the Commonwealth of Pennsylvania; decedent was a Citizen, resident and domiciliary of the Commonwealth of Pennsylvania at the time of his death. _FACTLI/kL BACI(GROLIND.- 18. On or about May 14, 2000, Mr. tGchman, sustained an injury to his right leg and knee when he accidentally stepped into a mole or groundhog hole in his yard. Mr. I(ickman had a prior medical history which included coronarT m-tory disease, hypertension, hyperlipidemia, and a right total knee replacement approximately five years earlier. 19. At that time, Mr. Ir-lchman was u. ansportcd, via ambulance, to the Emergency Department at Holy Spirit whereupon X-rays revealed that he had sustained a spiral, comminuted fracture through his distal femur which involved the proximal end of the revision prosthesis of the total knee replacement. 20. On or about May 15, 2000, Mt'. Kichm~n was admitted by Dr. Lonergan to H01y Spirit for definitive care and treatment of his injuries. 21. On or about May 15, 2000, Mr. Kichman was taken to an operating room at Spirit, whereupon Dr. Lonergan, as the orthopedic surgeon, and Dr. Pastor, as the attending anesthesiologist, performed an open reduction and internal fzxation of the right femoral fracture and revision of the right total knee replacement. 22. ~For this surgical procedure, Mr. I(ichman was placed under general anesthesia and had an opening blood pressure recorded at 200/100. Arterial blood pressure monitoring was not used. 23. Shortly after the surgical procedure was initiated, there was a period of hypotension that lasted for more than 15 minutes which was treated with ephedrine 10mg and 10 rog. 24. Subsequently, during the surgical procedure, there was another period of hypotension that exceeded 45 minutes which was also n-eated with ephedrine 10rog and 10mg. 25. Postoperatively, Mr. I(.ichman suffered an ischemic stroke from which he did not recover. Consequently, Mr. Kichman died on May 28, 2000. 26. The decedent's death was caused by the negligence of the defendants, as set forthiin detail below, and was contributed to in no way by the plaintiff or by the decedent. 27. Mr. Kichman was sm-rived by his wife, loan A. Kichman, the plaintiff herein, and three (3) adult children who live at the following addresses: Survivor Matthew C. Kichmm Address 355 Old Stage Kd. Lewisberry, PA 17339 ~htionship To Decedent Son MichadW. Irdchman 716-B Ligget Ave. ?ersidio San Francisco, CA 94129 Son Kandis Marie Heath 202 Glenwood Rd. Daughter Chapel Hill, NC 27516 28. Notice of this action has been served upon all of the persons identified in paraggaph 27, above. 29. Plaintiffs decedent brought no claim for the injuries complained of herein during his lifetime. 30. The negligent conduct of Dr. Lonergan, Dr. Pastor, Lonergan Orthopedics mad West Shore included the following: 31. (a) failing to adequately maintain &ce&nfs blood pressure during surgery in light of his known history of hypertension mad documented cardiovascular status; (b) failing to prevent decedenfs blood pressure from falling to hypotensive levels and permitting decedent~s blood pressure to remain at hypotensive levels for extended periods of time; (c) failing to adequately monitor decedenCs blood pressure and respond to the acute periods of hypotension; (d) Milhag to abandon the surgical procedure when prolonged periods of hypotension were encountered; (e) f~iling to adequately treat decedenfs hypotensive condition during the course of the surgical procedure with proper medications or medicines; (f) failing to utilize spinal anesthesia in a patient with a known history of elevated blood pressure and potential carotid artery disease; and (g) f~iling to diagnose decedent's carotid artery disease and failing to properly take it into consideration in treating decedent's hypotension during the course of the surgical procedure. In addition to his alleged negligence, Dr. Lonergan further committed a technical battery upon decedent by: (a) fiiling to inform the decedent of the risks and potential for complications, prior to obtaining his consent to perform the surgical procedure; and (b) f~i!ing to inform the decedent of the alternatives to the surgical procedure he performed upon him, or alternative means of performing the procedure he performed, before obtaining his consent to perform such a procedure. 32. In addition to his alleged negligence, Dr. Pastor further committed a technic~ battery upon decedent by: 33. (a) failing to inform the decedent of the risks and potential for complications, prior to obtaining his consent to perform the surgical procedure; and (b) ~jling to inform the decedent of the alternatives to the surgical procedure he performed upon him, or alternative means of performing the procedure he performed, before obtaining his consent to perform such a procedure. Holy Spirit is vicariously liable for the conduct of its agents, apparent agents, servants and employees who negligentty: failed to adequately maintain decedenCs blood pressure during surgery in (a) light of his known history of hypertension and documented cardiovascul/tr status; (b) failed to prevent decedent's blood pressure from f~lling to hypotensive leVels and permitted decedenfs blood pressure to remain at hypotensive levels for extended periods of time; (c) failed to adequately monitor decedent's blood pressure and respond to the acute periods of hypotension; (d) f_~iiing to abandon the surgical procedure when prolonged periods of hypotension were encountered; (e) failhag to adequately treat decedenfs hypotensive condition during the Course of the surgical procedure with proper medications or medicines; (f) failing to utilize spinal anesthesia in a patient with a known history of dlevated blood pressure and potential carotid artery disease; and (g) failing to diagnose decedent's carotid artery disease and fairing to properly take it into consideration in treating decedent's hypotension during the course of the surgical procedure. 34. In addition to being vicariously liable for the conduct of its agents, servants atsd employees specifically identified in paragraph 31 above, Holy Spirit was itself negligent in the following respects: 35. failing to use reasonable care in the maintenance of safe and adequate facilities and equipment; fai~ling to select and retain only competent physicians; failLng to oversee all persons who practice medicine within its walls as to patient care; and (d) failing to fotmuiate, adopt and enforce adequate rules and policies to ensme quality care for its patients. cOUNT I _w~OlqGI~UL DEATH ACTION Paragraphs 1 through 3& are hereby incorporated by reference as though fully set forth at length herein. 36. ]?hintiff brings this action on behalf of decedent's survivors, reader and pursuanti to the Pennsylvania Wrongfial Death Act, for the economic and other losses suffered by said sumvors as a result of decedent's death, including his contributions, services, guidance and tutelage, andt for medical and other legally compensable expenses associated with his final illness. funeral, . WHEREFORE, plaintiff, by her attorneys, Shrager, Spivey & Sachs hereby demandsi damages of the defendants herein in a sum in excess of fff-ty thousand dollars ($50,000.00), exclusive of interest, costs and damages for pre-iudgment delay. coUNT II SURVIVAL ACTION_ 37. paragraphs 1 through 36 are hereby incorporated by reference as though fully set forth at length herein. 10 38. Plaintiff brings this action on behalf of the Estate of the decedent, under and ptlrStlarlt to thc Pennsylvania Survival Act~ for damages for thc pecuniary losses s;~ffcrcd by dcccdcnt's Estate during thc period of his life expectancy, as well as for thc conscious pain and s~offering which he endured as a result as the misconduct of the defendants, and for all other legally compensable expenses incurred in connection with decedenCs illness. WI-IE~MO~, plaintiff by her attorneys, Shrager, Spivey 8c Sachs, hereby demands damages of the defendants herein, ioindY and severally, in a sum in excess of fifty thousand dollars ($50,000.00), exclusive of interest, costs and damages for pre-iudgment delay. Sbr~ger, Spi~ey & S~cbs W~yne I~ Spivey V. ?aul Bucci, II Attorneys for Plaintiff 11 V __ CAT OM Joan A. Kichmar~ hereby states that she is the plaintiff in the foregoing action and that the foregoing averments in the Complaint are true and correct to the best of her knowledge, information and belief. The language of said averments is that of counsd and not of plaintiff. Plaintiff has read the Complaint and to the extent that it is based upon information which she has given to her counsd, it is true and correct to the best of her knowledge, information and belief. To the extent that the language of the Complaint is that of counsel, she has relied upon counsel in making this verification. This Statement is made subject to the penalties of 18 Pa. C.S. Section ~90&, renting to unsworn falsification to authorities. · ' CERTIFICATE OF SERVICE_ I certify that ! om this day serving a copy of the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage, prepaid, as folloWS: Wayne R. Spivey, Esquire V. Paul Bucci, II, Esquire Shrager, Spivey & Sachs 32"d Floor, Two Commerce Square 2001 Market Street Philadelphia, PA 19103 Lonergan Orthopedics 207 House Avenue #105 Comp Hill, PA 17011 Michael M. Badowski, Esquire Stephen Banko, Jr., Esquire Margolis Edelstein P. O. Box 932 Harrisburg, PA 17108-0932 Joseph P. Hafer, Esquire Thomas, Thomas & Hafer 305 North Front Street P. O. Box 999 Harrisburg, PA 17108-0999 METTE, EVANS & WOODSIDE even D. Snyder, EsqUire Sup. Ct. I. D. #34344 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendant Holy Spirit Hospital DATE: June 6, 2002 Shrager, Spivey & Sachs By: Wayne R. Spivey, Esquire/V. Paul Bucci, II, Esquire Identification Numbers: 31017/87394 32nd Floor, Two Commerce Square 2001 Market Street Philadelphia, Pennsylvania 19103 (215) 568-7771 JOAN A. KICHMAN, Individually and as the Executrix of the Estate of CHARLES C. KICHMAN, Dec'd Plaintiff VS. JAMES PASTOR, WEST SHORE ANESTHESIA ASSOCIATES, LTD., ROBERT P. LONERGAN, LONERGAN ORTHOPEDICS, and HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY Defendants : CUMBERLAND COUNTY : COURT OF COMMONPLF~AS : CIVIL DMSION : No.: 02-2196 ORDER AND now, this day of ,2002, upon consideration of the Preliminary Objections of defendants, James Pastor and West Shore Anesthesia Associates, Ltd., to plaintiff's Complaint and plaintiff's response thereto, it is hereby ORDERED and DECREED that said Preliminary Objections are overruled. Defendants, James Pastor and West Shore Anesthesia Associates, Ltd., shall file an answer to plaintiffs' Complaint within twenty (20) days hereof. By the Court: J. Shrager, Spivey & Sachs By: Wayne R. Spivey, Esquire/V. Paul Bucci, II, Esquire Identification Numbers: 31017/87394 32nd Floor, Two Commerce Square 2001 Market Street Philadelphia, Pennsylvania 19103 (215) 568-7771 JOAN A. KICHMAN, Individually and as the Executrix of the Estate of CHARLES C. KICHMAN, Dcc'd Plaintiff VS. JAMES PASTOR, WEST SHORE ANESTHESIA ASSOCIATES, LTD., ROBERT P. LONERGAN, LONERGAN ORTHOPEDICS, and HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY De~nd~ts CUMBERLAND COUNTY COURT OF COMMON PLFAS CIVIL DMSION No.: 02-2196 PLAINTIFFS' RESPONSE TO PRELIMINARY OBJECTIONS OF DEFENDANTS, JAMES PASTOR AND WEST SHORE ANESTHESIA ASSOCIATES, LTD., TO PLAINTIFF'S COMPLAINT Plaintiffs, by their attomeys, Shrager, Spivey and Sachs, hereby respond to the Preliminary Objections of Defendants, James Pastor ("Dr. Pastor") and West Shore Anesthesia Associates, Ltd. ("West Shore") to plaintiff's Complaint as follows: 1. Admitted. itself. Admitted. Admitted. By way of further answer, plaintiff's Complaint is a writing which speaks for 4. The averments contained in this paragraph constitute conclusions of law to which no response is required. I. DEMURRER/MOTION TO STRIKE PURSUANT TO Pa.R.C.P. No. I028(a)(4) PERTAINING TO PLAINTIFF'S CLAIMS FOR FAILURE TO OBTAIN INFORMED CONSENT 5. No response is required to this incorporation paragraph. 6. Admitted. By way of further answer, plaintiff's Complaint is a writing which speaks for itself. 7. Admitted. 8. Admitted, however, 40 P.S. 1301.811-A was repealed on March 20, 2002 and replaced, effectively immediately, by 40 P.S. 1303.504. By way of further answer, the plain language of 40 P.S. 1301.811-A and 40 P.S. 1303.504 is self-evident. 9. See response to paragraph No. 8 above. 10. Denied. Denied insofar as the averments contained within this paragraph constitute an incorrect statement of the law regarding technical battery and/or informed consent in the Commonwealth of Pennsylvania. 11. Denied. Denied insofar as the averments contained within this paragraph constitute a wholly incorrect statement of the law in the case cited in this paragraph. By way of further answer, Morgan v. MacPhail, 550 Pa. 202, 704 A.2d 617, held that the doctrine of informed consent applies only to surgical procedures and, in particular, does not apply to the non-sureical administration of medication. WHEREFORE, plaintiff respectfully requests that the Court enter an Order in the form attached hereto, overruling Defendants' Preliminary Objections and ordering said defendants to answer plaintiff's Complaint within (20) days. II. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE PURSUANT TO Pa.R.C.F. No. 1028(a)(3) LACK OF FACTUAL SPECIFICITY - Pa.R.C.P. No. 1019(a) 12. No response is required to this incorporation paragraph. 13. Plaintiff's counsel and counsel for moving defendants have reached an agreement with respect to the Preliminary Objections regarding Paragraph Nos. 5, 12 and 16 of plaintiff's Complaint and, accordingly, said agreement has obviated the need to respond any further at this time. (See correspondence of June 5, 2002, attached hereto as Exhibit "A"). 14. See response to paragraph No. 13 above. 15. See response to paragraph No. 13 above. 16. See response to paragraph No. 13 above. III. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE PURSUANT TO Pa.R.C.P. No. 1028(a)(3) LACK OF FACTUAL SPECIFICITY - Pa.R.C.P. No. 1019(a) 17. No response is required to this incorporation paragraph. 18. Plaintiff's counsel and counsel for moving defendants have reached an agreement with respect to the Preliminary Objections regarding Paragraph No. 30 of plaintiff's Complaint and, accordingly, said agreement has obviated the need to respond any further at this time. (See Exhibit "A"). 19. See response to paragraph No. 18 above. 20. See response to paragraph No. 18 above. By: Wayne R. Spivey V. Paul Bucci, II Shrager, Spivey & Sachs Two Commerce Square, 32nd Floor 2001 Market Street Philadelphia, Pennsylvania 19103 (215) 568-7771 June 5, 2002 Shaun J. Mumford, Esquire MARGOLIS EDELSTEIN P.O. Box 932 Harrisburg, PA 17108-0932 Re: Estate of Kichman v. Pastor, et al Dear Mr. Mumford: This letter serves to confirm our conversation earlier today wherein we discussed the Preliminary Objections filed in response to plaintiff's Complaint on behalf of your clients; James Pastor and West Shore Anesthesia. Specifically, we discussed the following: 1) With respect to the Preliminary Objections which pertain to Paragraph Nos. 5, 12 and 16 of plaintiff's Complaint, I have requested that you provide me with the names and/or identity of any and all anesthesia personnel (including anesthesiologist(s) and/or nurse anesthetist(s)) who were involved in or participated in the surgery at issue. The identification of these individuals will enable plaintiff's counsel to more specifically name or otherwise identify the agents, servants and/or employees of your clients who were involved in or participated in the surgery at issue. In response to this request, you have agreed to try to obtain this information by contacting your clients and making all necessary inquiries. Upon my receipt of this information, you have agreed to provide me with the opportunity to make any appropriate changes to the original Complaint or, if necessary, to file an Amended Complaint. 2) Furthermore, with respect to the Preliminary Objections which pertain to' Paragraph Nos. 5, 12 and 16 of plaintiff's Complaint, I have agreed to limit plaintiff's claims to the agents, servants and/or employees of your clients who were involved in or participated in the surgery at issue. Page Two June 5, 2002 3) With respect to the Preliminary Objection which pertains to Paragraph No. 30, I have suggested, and you have acquiesced to, a change in the introductory language of said paragraph from "The negligent conduct of Dr: Lonergan, Dr. Pastor, Lonergan Orthopedics and West Shore included the following:" to "Dr. Lonergan, Dr. Pastor, Lonergan Orthopedics and West Shore were negligent in the following respects:." In sum, our discussion today has obviated the need for my response to two (2) out of the three (3) Preliminary Objections which you have filed in response to plaintiff's Complaint. Therefore, in consideration of the foregoing, we have agreed that the only remaining Preliminary Objection in dispute is your objection to Paragraph No. 32 of plaintiff's Complaint. After some discussion, we have agreed to disagree on the merits of Paragraph No. 32 and, accordingly, we have agreed that the entirety of my response to your Preliminary Objections need only to address your objection to Paragraph No. 32. Should you have any further questions or suggestions, please do not hesitate to contact me at your earliest convenience. Sincerely, V. Paul Bucci, ri VPBII THOMAS, THOMAS & HAFER, LLP By: Joseph P. Hafer, Esquire Attorney LD. No. 07186 Hugh P. O'Neill, IH, Esquire Attorney I.D. No. 69986 P.O. Box 999 Harrisburg, PA 17108 (717)255-7613 Attorneys for Defendant: JOAN A. KICHMAN, Individually and as the Executrix of the Estate of CHARLES C. KICHMAN, Deceased, Plaintiff, Vo JAMES PASTOR, WEST SHORE ANESTHESIA ASSOCIATES, LTD., ROBERT P. LONERGAN, LONERGAN ORTHOPEDICS and HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, Defendants. COURT O1~ CUMBERL CIVIL DIV] No. 02-219{ JURY TRIg NOTICE TO PLEAD Robert P. Lonergan COMMON PLEAS MND COUNTY SION L DEMANDED days from service hereof or a default judgment mayl~l~tered at ~st you~ Jose~LI~ffe~ E~ ~e A~tor~y I.D. No. 69986 P/. O/Box 999 ~tfisbttrg, PA 17108-0999 (717) 237-~'none: ? 1 O0 Attorneys for Defendant Rot.ert P. Lonergan You are hereby notified to plead to the enclosed Answer and New ,Vlatter within twenty (20) THOMAS, THOMAS & HAFER, LLP By: Joseph P. Hafer, Esquire Attorney LD. No. 07186 Hugh P. O'Neill, IH, Esquire Attorney LD. No. 69986 P.O. Box 999 Harrisburg, PA 17108 (717)255-7613 Attorneys for Defendant: JOAN A. KICHMAN, Individually and as the Executrix of the Estate of CHARLES C. KICHMAN, Deceased, Plaintiff, Vo JAMES PASTOR, WEST SHORE ANESTHESIA ASSOCIATES, LTD., ROBERT P. LONERGAN, LONERGAN ORTHOPEDICS and HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, Defendants. Robert P. Lonergan COURT OE COMMON PLEAS CUMBERLAND COUNTY CIVIL DIVISION No. 02-2196 JURY TRIA ANSWER AND NEW MATTER OF DEFENDANT ROBERT P. LONERGAN TC PLAINTIFF'S CIVIL ACTION COMPLAII~ Defendant Robert P. Lonergan, by and through his counsel, Th LLP, hereby responds to Plaintiff's civil action Complaint, and avers as fol 1-5. Denied. After reasonable investigation, Answering Defen knowledge or information to form an opinion or believe as to the tmth or f further response, all allegations are generally denied pursuant to Pa.R.C.P are placed at issue and strict proof thereof is demanded at the time of trial. 6. Admitted. 7. Denied as stated. Rather, it is only admitted that Robert licensed physician under the laws of the Commonwealth of Pennsylvania L DEMANDED mas, Thomas & Hafer, lows: tant is without sufficient flsity thereof. By way of 1029(e). All allegations P. Lonergan was a duly ad was board certified in orthopedic surgery. By way of further response, all other allegations contained in this paragraph are generally denied pursuant to Pa.R.C.P. 1029(e). All allegations are placed at issue and strict proof thereof is demanded at the time of trial. 8. Denied. It is specifically denied that Lonergan Orthopedics is a corporate entity / organized and existing under the laws of the Commonwealth of PennsYlVania. Rather, there is no 1 such entity, corporate or otherwise, known as Lonergan Orthopedics e~isting under the business laws of the Commonwealth of Pennsylvania. 9. Denied. All allegations of agency, servitude and employment are specifically denied as Plaintiff fails to identify the alleged agent, servants and/or employees and accordingly, all allegations are specifically denied. Moreover, all allegations of agency, servitude and employment relating to Dr. Lonergan are also specifically denied. Moreover, all othe~ allegations are generally denied as conclusions of law and generally pursuant to Pa.R.C.P. 1029(e). All allegations are placed at issue and strict proof thereof is demanded at the time of trial. 10-12. Denied. After reasonable investigation, Answering Defendant is without sufficient knowledge or infommtion to form an opinion or belief as to the truth o~ falsity of the allegations contained therein. Moreover, all allegations are generally denied pursu~ All allegations are placed at issue and strict proof thereof is demant 13. Denied. Plaintiff falls to identify the alleged agents, se Lonergan Orthopedics and accordingly, all said allegations are deemed other allegations are denied as conclusions of law and generally deni¢ 1029(e). All allegations are placed at issue and strict proof thereof is dema 14. Denied. It is specifically denied that Dr. Lonergan was an servant or employee of Defendant Holy Spirit. Moreover, all other 2 mt to Pa.R.C.P. 1029(e). ted at the time of trial. 'rants and employees of denied specifically. All d pursuant to Pa.R.C.P. ~ded at the time of trial. ctual or ostensible agent, llegations are denied as conclusions of law and generally denied pursuant to Pa.R.C.P. 1029(e). All allegations are placed at issue and strict proof thereof is demanded at the time of trial. 15. Admitted in part, denied in part. It is only admitted thfit Dr. Lonergan regularly conducts business in Cumberland County, Pennsylvania. Moreover, the dther allegations contained in this paragraph are directed to parties other than Answering Defendant aa is deemed required. To the extent an answer is deemed required, all otl pursuant to Pa.R.C.P. 1029(e). All allegations are placed at issue and stric at the time of trial. 16. Denied. Plaintiff fails to identify the alleged actual or o and employees of Answering Defendant and accordingly, all said allegatio Moreover, all allegations are denied as conclusions of law or generally der 1029(e). All allegations are placed at issue and strict proof thereof is dema 17. Denied. After reasonable investigation, Answering Defen knowledge or information to form an opinion or belief as to the troth or contained therein. Moreover, all allegations are denied as conclusions of pursuant to Pa.R.C.P. 1029(e). demanded at the time of trial. All allegations are placed at issue an FACTUAL BACKGROUND 18-19. Denied. All allegations are generally denied pursuant t¢ allegations are placed at issue and strict proof thereof is demanded at the tit 20. Denied. The medical records regarding Mr. Kichmar Moreover, all allegations are generally denied pursuant to Pa.R.C.P. 102! placed at issue and strict proof thereof is demanded at the time of trial. td accordingly, no answer ter allegations are denied proof there is demanded tensible agents, servants ~s are specifically denied. ied pursuant to Pa.R.C.P. aded at the time of trial. ]ant is without sufficient falsity of the allegations [aw and generally denied strict proof thereof is Pa.R.C.P. 1029(e). All ~e of trial. speak for themselves. }(e). Alt allegations are 21. Admitted in part, denied part. It is only admitted that Dr. Lonergan performed surgery on Mr. Kichman on May 15, 2000 at Holy Spirit Hospital. By way of further response, the medical records regarding Mr. Kichman speak for themselves. All othei: allegations are generally denied pursuant to Pa.R.C.P. 1029(e). All allegations are placed at issue ~and strict proof thereof is demanded at the time of trial. 22-25. Denied. All allegations are generally denied pursuant to P; t.R.C.P. 1029(e). By way of fmther response, the medical records regarding Mr. Kichman SlX ak for themselves. All allegations are placed at issue and strict proof thereof is demanded at the ti ne of trial. 26. Denied. All allegations of negligence against Answering )efendant are specifically denied as Answering Defendant acted with the requisite standard of care at all times relevant. By way of further response, the allegations contained in this paragraph are de~ tied as conclusions of law and are generally denied pursuant to Pa.R.C.P. 1029(e). All allegations an'. placed at issue and strict proof thereof is demanded at the time of trial. 27-29. Denied. After reasonable investigation, Answering Defe~ tdant is without sufficient knowledge or information to form an opinion or a belief as to the troth ol falsity of the allegations contained therein. Moreover, all allegations are denied as conclusions >f law and are generally denied pursuant to Pa.R.C.P. 1029(e). All allegations are placed at issue, md strict proof thereof is demanded at the time of trial. I / negligence as described in Subparagraphs a-g as to 30. Denied. All allegations of ! Answering Defendant are specifically denied as Answering Defendan~ [acted with the requisite standard of care at all times relevant. Moreover, all allegations are denied ~ conclusions of law and are generally denied pursuant to Pa.R.C.P. 1029(e). All allegations are >laced at issue and strict proof thereof is demanded at the time of trial. 31. Denied. All allegations of technical battery as referred to in Subparagraphs a-b are specifically denied as Dr. Lonergan obtained valid infonned consent Upon Plaintiff's decedent. Moreover, all said allegations are denied as conclusions of law and are further generally denied pursuant to Pa.R.C.P. 1029(e). All allegations are placed at issue and strict proof thereof is demanded at the time of trial. 32-34. Denied. The allegations contained in these paragraphs as directed to a party other than Answering Defendant and no response is required. However, to the '~xtent a reply is required by Answering Defendant, all allegations are denied as conclusions of lax~ and are generally denied pursuant to Pa.R.C.P. 1029(e). All allegations are placed at issue as d strict proof thereof is demanded at the time of trial. COUNT I WRONGFUL DEATH ACTION 35. Answering Defendant incorporates his responses to Par&graphs 1 through 34 of Plaintiff's Complaint as if set forth herein at length. 36. Denied. All allegations are denied as conclusions of law and are generally denied pursuant to Pa.R.C.P. 1029(e). All allegations are placed at issue aOd strict proof thereof is demanded at the time of trial. WHEREFORE, Answering Defendant demands judgment in his f~vor and against all other parties together with costs and attorneys' fees. COUNT II SURVIVAL ACTION 37. Answering Defendant incorporates his responses to Paragraphs 1 through 36 of Plaintiff's Complaint as if set forth herein at length. 5 38. Denied. All allegations contained in this Paragraph are denied as conclusions of law and are further generally denied pursuant to Pa.R.C.P. 1029(e). All allegations are placed at issue and strict proof thereof is demanded at the time of trial. WHEREFORE, Answering Defendant demands judgment in his i favor together with costs and attorneys' fees. NEW MATTER 39. Answering Defendants incorporate Paragraphs 1 through 38 of this Answer as if set forth at length herein. 40. Plaintiff falls to state a cause of action against Answerin Defendant upon which relief can be granted. 41. Answering Defendant raises all affirmative defenses of tl~ Healthcare Services Malpractice Act, 40 P.S. § 1301.101, et seq. 42. For the purposes of preserving the same, and subject to fc ther discovery, all or some of Plaintiff's claims are time-barred due to the expiration of the apl ~licable Statute of Limitations. 43. For the purpose of preserving the same, and subject to dis :overy, all or some of Plaintiff's claims may be barred pursuant to the affirmative defenses of r ~lease, offset, or accord and satisfaction. 44. At no time relevant hereto was Defendant Robert P. Lone:'gan an agent or servant or employee acting on behalf of any other Defendants in this action. 45. At no time relevant hereto was any other natural person, artnership, corporation, or other legal entity acting or serving as an agent, servant, employee, or therwise for or on behalf of Robert P. Lonergan, M.D. 46. Any additional allegation of negligence other than as specifically set forth in Plaintiff's Complaint based on Plaintiff's allegation of negligence "incltlding but not limited to" are or will be barred by the Statue of Limitations. 47. In the event that it is determined that Answering Defenda regard to any of the allegations contained in and with respect to Plaintiff allegations being specifically denied, discovery may establish that said superseded by the intervening negligent acts of other persons, parties, than Answering Defendant, and over whom said Answering Defendant responsibility, and therefore Answering Defendant is not liable. 48. To the extent that the evidence may show that other persc corporations, or other legal entities caused or contributed to the injuries condition of Plaintiff, then the conduct of the Answering Defendant was such conditions or injuries. 49. Any acts or omissions of Answering Defendant alleged tc were not substantial factors contributing to the injuries and damages alle. Complaint. 50. If any injuries and damages, as alleged in Plaintiff's Corn whole or in part by persons or entities over whom Answering Defendant supervise or control, then Answering Defendant is not liable, and PlaintiJ against them. 51. Plaintiff's injuries and losses, if any, were not caused by negligence of Answering Defendant, but rather were caused by pre-exis~ at was negligent with 's Complaint, said egligence was d/or organizations other ~ad no control, right, or ns, partnerships, ~r the pre-existing not the legal cause of constitute negligence ed in Plaintiff's laint, were caused in had no duty to f may not recover ~e conduct or ag medical conditions and causes beyond the control of Answering Defendant, and therefore Plaintiff may not recover against Answering Defendant. 52. The acts or omissions of others, and not Answering Defefidant, may have constituted intervening and/or superseding causes of the injuries and/or ~lamages alleged to have been sustained by Plaintiff, and Answering Defendant cannot, pursuant o Pennsylvania law, be held liable for the alleged injuries to Plaintiff. 53. The incident and/or damages described in Plaintiff's Cor~ 91aint were caused or contributed to by Plaintiff. 54. The Plaintiff may have assumed the risk. 55. The Plaintiff may have been contributorily negligent. 56. Answering Defendant raises all affirmative defenses of th Availability and Reduction of Error (M'care) Act a/k/a Act 13 of 2002 a~, claims. WHEREFORE, Answering Defendant demands judgment in thei~ favor without cost to them. Medical Care a limit/bar to Plaintiffs s ~. o~. '0~8~r'~uire / Hug ~ P.,.O'Neill, IlI, Esquire Atflamey I.D. No. 69986 P~ O. Box 999 /Harrisburg, PA 17108-0999 ~/' Phone: (717) 237-7100 Attorneys for Defendant Rol~ eft P. Lonergan 8 VERIFICATION I hereby affirm that the following facts are correct: The attached ANSWER AND NEW MATTER OF DEFENDANT ROBERT P. LONERGAN TO PLAINTIFF'S COMPLAINT are based both upon iinformation I have furnished to my Counsel and information that has been gathered by my for the defense of the Lawsuit. The language of the ANSWER AND N] DEFENDANT ROBERT P. LONERGAN TO PLAINTIFF'S COM] Counsel and. not of nfine. I ha~e read the ANSWER AND NEW MA~TER OF DEFENDANT ROBERT P. LONERGAN TO PLAINTIFF'S COMI extent that the Answers and Objections are based upon information that Counsel, it is tree and correct to the best of my knowledge, information extent that the content of ANSWER AND NEW MATTER OF DEFEI LONERGAN TO PLAINTIFF'S COMPLAINT is that of Counsel, I Counsel in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid AN,~ MATTER OF DEFENDANT ROBERT P. LONERGAN TO PLAII~ are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to authorities. Date: ~////~.Z ,2002 2ounsel in preparation ~W MATTER OF ~LAINT is that of ;WER AND NEW YIFF'S COMPLAINT tnswom falsification to 'LAINT and, to the i have given to my and belief. To the qDANT ROBERT P. rave relied upon CERTIFICATE OF SERVICE : I, Hugh P. O'Neill, III, an employee of the law offices of T~omas, Thomas & Hafer, LLP, do hereby certify that I served a copy of the foregoing document )y depositing the same in the United States mail, first class, postage prepaid, as follows: Wayne R. Spivey, Esquire V. Paul Bucci, H, Esquire Shrager, Spivey & Sachs 32® Floor, Two Commerce Square 2001 Market Street Philadelphia, PA 19103 Michael Badowski, Esquire Margolis Edelstein P.O. Box 932 Harrisburg, PA 17108-0932 Craig Stone, Esquire Mette, Evans & Woodside 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 :170755.1 HUO .O JOAN A. KICHMAN, Individually and as the Executrix of the Estate of CHARLES C. KICHMAN, Deceased, PLAINTIFF : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA JAMES PASTOR, WEST SHORE ANESTHESIA ASSOCIATES, LTD., ROBERT P. LONERGAN, LONERGAN ORTHOPEDICS AND HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, DEFENDANTS 02-2196 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS JAMES PASTOR AND WEST SHORE ANESTHESIA ASSOCIATES, LTD. TO PLAINTIFF'S COMPLAINT BEFORE BAYLEY~ J. AND GUIDO, J. ORDER OF COURT AND NOW, this (-~'~' day of August, 2002, the preliminary objections of defendants James Pastor and West Shore Anesthesia Associates, LTD. to plaintiffs complaint, ARE DISMISSED. Edgar B. Bayley, J. 02-2196 CIVIL TERM /,Wayne R. Spivey, Esquire For Plaintiff /,Michael M. Badowski, Esquire For James Pastor and West Shore Anesthesia Associates, LTD. .,~Joseph P. Haler, Esquire For Robert P. Lonergan, Lonergan Orthopedics and Craig A. Stone, Esquire f~oly Spirit Hospital of the Sisters of Christian Charity :saa JOAN A. KICHMAN, Individually and as the Executrix of the Estate of CHARLES C. KICHMAN, Deceased, PLAINTIFF : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA JAMES PASTOR, WEST SHORE ANESTHESIA ASSOCIATES, LTD., ROBERT P. LONERGAN, LONERGAN ORTHOPEDICS AND HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, DEFENDANTS 02-2196 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS JAMES PASTOR ANn WEST SHORE ANESTHESIA ASSOCIATES, LTD. TO PLAINTIFF'S COMPLAINT BEFORE BAYLEY~ J. AND GUlDO~ J. OPINION AND ORDER OF COURT Bayley, J., August 9, 2002:-- Plaintiff, Joan A. Kichman, individually and as the executrix of the estate of her husband Charles C. Kichman, filed this complaint against defendants, James Pastor, West Shore Anesthesia Associates, LTD., Robert P. Lonergan, Lonergan Orthopedics, and Holy Spirit Hospital of the Sisters of Christian Charity. Dr. Pastor is an anesthesiologist and Dr. Lonergan is an orthopedic surgeon. Plaintiff avers that on May 15, 2000, Charles C. Kichman "was taken to an operating room at Holy Spirit, whereupon Dr. Lonergan, as an orthopedic surgeon, and Dr. Pastor, as the attending 02-2196 CIVIL TERM anesthesiologist, performed an open reduction and internal fixation of the right femoral fracture and revision of the right total knee replacement." During this procedure, Kichman was placed under general anesthesia by Dr. Pastor. Post-operatively, Kichman suffered an ischemic stoke from which he died on May 28, 2000. Plaintiff's complaint sets forth causes of action for negligence against all defendants. Paragraph 32 alleges: In addition to his alleged negligence, Dr. Pastor further committed a technical battery upon decedent by: (a) failing to inform the decedent of the risks and potential for complications, prior to obtaining his consent to perform the surgical procedure; and (b) failing to inform the decedent of the alternatives to the surgical procedure he performed upon him, or alternative means of performing the procedure he performed, before obtaining his consent to perform such a procedure. Dr. Pastor filed preliminary objections to the complaint. All of his objections have been resolved except his claim that the cause of action for lack of informed consent should be dismissed. He argues that he had no duty to obtain Kichman's informed consent before administering general anesthesia during the operation performed by Dr. Lonergan. In Montgomery v. Bazaz-Sehgal, 798 A.2d 742 (Pa. 2002), the Supreme Court of Pennsylvania stated: "It has long been the law in Pennsylvania that a physician must obtain informed consent from a patient before performing a surgical or operative procedure." Mo~.an v. MacPhail, 550 Pa. 202, 704 A.2d 617, 619 (1997), citing Sinclairv. Block, 534 Pa. 563, 633 A.2d 1137 (1993); Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966). -2- 02-2196 CIVIL TERM The informed consent doctrine requires physicians to provide patients with "material information necessary to determine whether to proceed with the surgical or operative procedure or to remain in the present condition." Sinclairby Sinclair v. Block, 534 Pa. 563, 633 A.2d 1137, 1140 (1993). We have on several occasions defined the nature of this "material information." We have stated that the information provided by a physician must give the patient "a true understanding of the nature of the operation to be performed, the seriousness of it, the organs of the body involved, the disease or incapacity sought to be cured, and the possible results." Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663, 674 (1966). Thus, a physician must "advise the patient of those material facts, risks, complications and alternatives to surgery that a reasonable person in the patient's situation would consider significant in deciding whether to have the operation." Gouse v, Cassel, 532 Pa. 197, 615 A.2d 331,334 (1992). A claim that a physician failed to obtain the patient's informed consent sounds in battery. Id.; see also Mor, qan v. MacPhai1550 Pa. 202, 704 A.2d 617 (1997). The Legislature at 40 P.S. Section 1301.81 l-A, has provided: (a) except in emergencies, a physician owes a duty to a patient to obtain the informed consent of the patient or the patient's authorized representative prior to conducting the following procedures: (1) performing surgery, including the related administration of anesthesia .... (Emphasis added.) This section was repealed on March 20, 2002, and replaced immediately by a statute with the same language at 40 P.S. 1303.504(a)(1). In his brief in support of his preliminary objection, Dr. Pastor argues: The plain, unambiguous language of this statute clearly places the burden of explaining the risks and alternatives of surgery, including anesthesia, upon the physician performing the surgery. The duty of obtaining the informed consent of a patient prior to surgery includes explaining those risks attendant to the administration of anesthesia during the surgery. The statute simply acts to codify what has been the traditional law of this Commonwealth, placing the burden upon the physician performing the -3- 02-2196 CIVIL TERM surgery. Therefore, Dr. Pastor, as an anesthesiologist, was not required by Pennsylvania law to obtain Mr. Kichman's informed consent for the administration of anesthesia. We disagree. The statute does not limit the duty to obtain the informed consent of the patient to the operating physician. Rather it states that "a physician owes a duty to the patient to obtain the informed consent of the patient." (Emphasis added.) The administration of anesthesia is, by statute, an operative procedure. Plaintiff has averred that Dr. Pastor administered general anesthesia to Charles Kichman, and that Kichman was not informed of the risks, potential for complications, alternatives to the procedure or alternative means of performing the procedure before his consent was obtained. There is no legal basis for holding that a cause of action has not been stated against Dr. Pastor and the West Shore Anesthesia Associates, LTD.' ORDER OF COURT AND NOW, this __~f~ day of August, 2002, the preliminary objections of defendants James Pastor and West Shore Anesthesia Associates, LTD. to plaintiff's complaint, ARE DISMISSED. ~ We are not suggesting that Dr. Pastor himself had to obtain Charles Kichman's informed consent for the administration of general anesthesia. His duty can be performed by an agent. Thus, if Dr. Lonergan obtained Kichman's informed consent for the administration of general anesthesia, Dr. Pastor could not be liable on a lack of informed consent claim. Dr. Pastor, however, cannot maintain, as he has here, that the duty to obtain Kichman's informed consent for the administration of general anesthesia that he administered was solely Dr. Lonergan's. 02-2196 CIVIL TERM Wayne R. Spivey, Esquire For Plaintiff Michael M. Badowski, Esquire For James Pastor and West Shore Anesthesia Associates, LTD. Joseph P. Haler, Esquire For Robert P. Lonergan, Lonergan Orthopedics and Craig A. Stone, Esquire Holy Spirit Hospital of the Sisters of Christian Charity :saa -5- Shrager, Spivey & Sachs By: Wayne R. Spivey, Esquire/V. Paul Bucci, II, Esquire Identification Numbers: 31017/87394 32nd Floor, Two Commerce Square 2001 Market Street Philadelphia, Pennsylvania 19103 JOAN A. KICHMAN, Individually and as the : CUMBERLAND COUNTY Executrix of the Estate of : COURT OF COMMONPLF. AS CHARLES C. KICHMAN, Dec'd : CIVIL DIVISION Plaintiff : VS. : JAMES PASTOR and : No.: 02-2196 Civil WEST SHORE ANESTHESIA : ASSOCIATES, LTD. and : ROBERT P. LONERGAN and : LONERGAN ORTHOPEDICS and : HOLY SPIRIT HOSPITAL OF THE : SISTERS OF CHRISTIAN CHARITY : Defendants : PLAINTIFF'S RESPONSE TO ANSWER AND NEW MATTER OF DEFENDANT ROBERT P. LONERGAN TO PLAINTIFF'S CML ACTION COMPLAINT Plaintiff, by her attorneys, Shrager, Spivey & Sachs, hereby responds to the New Matter of Defendant, Robert P. Lonergan, as follows: 39 - 56. Each of the averments set forth in these paragraphs constitute conclusions of law, to which no response is required. By way of further response, to the extent any such averments are deemed to constitute factual allegations, same arc denied and strict proof thereof, to thc extent relevant, is demanded at thc time of trial. WHEREFORE, Plaintiff demands damages of the defendants in a sum in excess of Fifty Thousand Dollars ($50,000.00), plus interests, costs of suit, and damages for delay. Shrager, Spivey & Sachs By: VERIFICATION I, Wayne R. Spivey, Esquire hereby states that he is counsel for the plaintiffs in the foregoing action and that the averments in the foregoing are true and correct to the best of his knowledge, information and belief. This Statement is made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. - W~e R. Spivey - } Shrager, Spivey & Sachs By: Wayne R. Spivey, Esquire/V. Paul Bucci, II, Esquire Identification Numbers: 31017/87394 32nd Floor, Two Commerce Square 2001 Market Street Philadelphia, Pennsylvania 19103 (215) 568-7771 JOAN A. KICHMAN, Individually and as the Executrix of the Estate of CHARLES C. KICHMAN, Dcc'd Plaintiff VS. JAMES PASTOR, WEST SHORE ANESTHESIA ASSOCIATES, LTD., ROBERT P. LON. ERGAN, LONERGAN ORTHOPEDICS, and HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY Defendants : CUMRERLAND COUNTY : COURT OF COMMONPLF~AS : CIVIL DMSION No.: 02-2196 CIVIL ACTION AMENDED COMPLAINT Plaintiff, by her attorneys, Shrager, Spivey & Sachs, hereby demands damages of defendants herein, jointly and severally, for a sum in excess of Fifty Thousand Dollars ($50,000.00), exclusive of interest, costs, and damages for prejudgment delay upon causes of action whereof the following are statements: 1. Plaintiff, Joan A. Kichman, an adult individual, is a citizen of the Commonwealth of Pennsylvania, residing therein at 356 Old Stage Road, Lewisberry. She is the duly appointed Executrix of the Estate of Charles C. Kichrnan, deceased (hereinafter referred to as "Mr. Kichman'), having been appointed same by the Register of Wills of York County on February 19, 2002. 2. Defendant, James Pastor (hereinafter referred to as "Dr. Pastor"), an adult individual, is a citizen and resident of the Commonwealth of Pennsylvania and at all times relevant hereto has been engaged in the practice of medicine with an office and place of business located at 503 N. 21th Street, Camp Hill, Pennsylvania. 3. At all times pertinent hereto, Dr. Pastor was engaged in the practice of medicine, pursuing the specialty of anesthesiology, and was obliged to bring to bear in the practice of his profession the professional skills, knowledge and experience which he possessed or was obliged to posses, and to pursue his profession in accordance with reasonably safe and acceptable standards of medicine, in general, and anesthesiology, in particular. 4. Defendant, West Shore Anesthesia Associates, Ltd. (hereinafter referred to as "West Shore"), is a corporate entity, organized and existing under the laws of Pennsylvania, with an office and place of business located at 503 N. 21th Street, Camp Hill, Pennsylvania. 5. At afl times pertinent hereto, West Shore acted through its agents, servants, and/or employees, including Dr. Pastor, John H. Benedict, M.D. and Mark Bryan Whimey, M.D. (hereinafter referred to as "Dr. Benedict" and "Dr. Whitney"), in conjunction with the care rendered to Mr. Kichman. At afl times pertinent hereto, the agents, servants and/or employees herein identified of West Shore were acting within the course and scope of their employment, agency, or apparent agency in conjunction with the care rendered to Mr. Kichman. 6. Defendant, Robert P. Lonergan (hereinafter referred to as "Dr. Lonergan"), an adult individual, is a citizen and resident of the Commonwealth of Pennsylvania and at all times relevant hereto has been engaged in the practice of medicine with an office and place of business located at 207 House Avenue #105, Camp Hill, Pennsylvania. 7. At all times pertinent hereto, Dr. Lonergan was engaged in the practice of medicine, pursuing the specialty of orthopedic surgery, and was obliged to bring to bear in the practice of his profession the professional skills, knowledge and experience which he possessed or was obliged to posses, and to pursue his profession in accordance with reasonably safe and acceptable standards of medicine, in general, and orthopaedic surgery, in particular. 8. It is believed and therefore averred that defendant, Lonergan Orthopedics, is a corporate entity, organized and existing under the laws of Pennsylvania, with an office and place of business located at 207 House Avenue 4~105, Camp Hill, Pennsylvania. 9. At all times pertinent hereto, Lonergan Orthopedics acted through its agents, servants, and/or employees, including Dr. Lonergan, in conjunction with the care rendered to Mr. Kichman. At all times pertinent hereto, the agents, servants, and/or employees of Lonergan Orthopedics were acting within the course and scope of their employment, agency, or apparent agency in conjunction with the care rendered to Mr. Kichman. 10. Defendant, Holy Spirit Hospital of the Sisters of Christian Charity (hereinafter referred to as "Holy Spirit"), is a corporation, organized and existing under and pursuant to the laws of the Commonwealth of Pennsylvania and at all times pertinent hereto was operating a hospital at 503 N. 21th Street, Camp Hill, Pennsylvania. 11. At all times pertinent hereto, Holy Spirit held itself out in the community as being a full service medical care institution, properly equipped and staffed, and rendering quality medical care, acting through its departments, medical groups, staff members and other agents, servants and employees. 12. The agents, servants and employees of West Shore were Dr. Pastor, Dr. Benedict and Dr. Whitney, who rendered, or undertook to render, medical care and treatment to Mr. Kichman as set forth below. 13. Thc agents, servants and employees of Lonergan Orthopedics included Dr. Lonergan as well as any other medical treatment providers employed by Lonergan Orthopedics who rendered, or undertook to render, medical care and treatment to Mr. Kichman as set forth below. 14. The actual or ostensible agents, servants and employees of Holy Spirit included Dr. Pastor, Dr. Benedict, Dr. Whitney and Dr. Loncrgan, as well as any other medical treatment providers employed by Holy Spirit who rendered, or undertook to render, medical care and treatment to plaintiff's decedent from May 14, 2000 through, and including, May 28, 2000. Thc specific acts of negligence that these actual or ostensible agents, servants and employees committed within thc scope of said agency are described in detail below. 15. Defendants, Dr. Pastor and Dr. Loncrgan, West Shore Anesthesia Associates, Lonergan Orthopedics and Holy Spirit, each presently treat patients in Cumberland County, and thus regularly conduct business therein, within the meaning of the Pennsylvania Rules of Civil Procedure. 16. At the time of the events giving rise to this action, plaintiff and her decedent were citizens, residents and domiciliaries of the Commonwealth of Pennsylvania; decedent was a citizen, resident and domiciliary of the Commonwealth of Pennsylvania at thc time of his death. FACTUAL BACKGROUND 17. On or about May 14, 2000, Mr. Kichman, sustained an injury to his fight leg and knee when he accidentally stepped into a mole or groundhog hole in his yard. Mr. Kichman had a prior medical history which included coronary artery disease, hypertension, hyperlipidcmia, and a fight total knee replacement approximately five years earlier. 18. At that time, Mr. Kichman was transported, via ambulance, to the Emergency Department at Holy Spirit whereupon X-rays revealed that he had sustained a spiral, comminuted fracture through his distal femur which involved the proximal end of the revision prosthesis of the total knee replacement. 19. On or about May 15, 2000, Mr. Kichman was admitted by Dr. Lonergan to Holy Spirit for definitive care and treatment of his injuries. 20. On or about May 18, 2000, Mr. Kichman was taken to an operating room at Holy Spirit, whereupon Dr. Loncrgan, as the orthopedic surgeon, and Dr. Pastor, as the attending anesthesiologist, performed an open reduction and internal fixation of the right femoral fracture and revision of the right total knee replacement. 21. For this surgical procedure, Mr. Kichman was placed under general anesthesia and had an opening blood pressure recorded at 200/100. Arterial blood pressure monitoring was not used. 22. Shortly after the surgical procedure was initiated, there was a period ofhypotension that lasted for more than 15 minutes which was treated with ephedrine 10mg and 10 mg. 23. Subsequently, during the surgical procedure, there was another period of hypotcnsion that exceeded 45 minutes which was also treated with ephedrine 10mg and 10mg. 24. Postoperatively, Mr. Kichman suffered an ischemic stroke from which he did not recover. Consequently, Mr. Kichman died on May 28, 2000. 25. The decedent's death was caused by the negligence of the defendants, as set forth in detail below, and was contributed to in no way by thc plaintiff or by the decedent. 26. Mr. Kichman was survived by his wife, Joan A. Kichman, the plaintiff herein, and three (3) adult children who live at the following addresses: Survivor Address Matthew C. Kichman 355 Old Stage Rd. Lewisberry, PA 17339 Michael W. Kichman 716-B Ligget Ave. Persidio San Francisco, CA 94129 Kandis Marie Heath 202 Glenwood Rd. Chapel Hill, NC 27516 27. 26, above. Relationship To Decedent Son Son Daughter Notice of this action has been served upon all of the persons identified in paragraph 28. lifetime. Plaintiffs decedent brought no claim for the injuries complained of herein during his 29. Dr. Lonergan, Dr. Pastor, Loncrgan Orthopedics, West Shore, and Dr. Benedict and Dr. Whimey, as the agents and/or employees of defendant, West Shore, were negligent in the following respects: (a) failing to adequately maintain decedenfs blood pressure during surgery in light of his known history of hypertension and documented cardiovascular status; (b) failing to prevent decedent's blood pressure from falling to hypotensive levels and permitting decedent's blood pressure to remain at hypotensive levels for extended periods of time; (c) failing to adequately monitor decedenfs blood pressure and respond to the acute periods of hypotension; (d) failing to abandon the surgical procedure when prolonged periods of hypotension were encountered; (c) (0 (g) failing to adequately treat decedent's hypotensive condition during the course of the surgical procedure with proper medications or medicines; failing to utili?e spinal anesthesia in a patient with a known history of elevated blood pressure and potential carotid artery disease; and failing to diagnose decedent's carotid artery disease and failing to properly take it into consideration in treating decedent's hypotension during thc course of the surgical procedure. 30. In addition to his alleged negligence, Dr. Lonergan further committed a technical battery upon decedent by: (a) failing to inform the decedent of the risks and potential for complications, prior to obtaining his consent to perform the surgical procedure; and (b) failing to inform the decedent of the alternatives to the surgical procedure he performed upon him, or alternative means of performing the procedure he performed, before obtaining his consent to perform such a procedure. 31. In addition to his alleged negligence, Dr. Pastor further committed a technical battery upon decedent by: (a) failing to inform the decedent of the risks and potential for complications, prior to obtaining his consent to perform the surgical procedure; and (b) failing to inform the decedent of the alternatives to the surgical procedure he performed upon him, or alternative means of performing the procedure he performed, before obtaining his consent to perform such a procedure. 32. Holy Spirit is vicariously liable for the conduct of its agents, apparent agents, servants and employees who negligently: (a) failed to adequately maintain decedent's blood pressure during surgery in light of his known history of hypertension and documented cardiovascular status; (b) failed to prevent dccedcnt's blood pressure from falling to hypotensivc levels and permitted decedent's blood pressure to remain at hypotensive levels for extended periods of time; (c) failed to adequately monitor decedent's blood pressure and respond to the acute periods of hypotension; (d) failing to abandon the surgical procedure when prolonged periods of hypotcnsion were encountered; (e) failing to adequately treat decedent's hypotensive condition during the course of the surgical procedure with proper medications or medicines; (f) failing to utilize spinal anesthesia in a patient with a known history of elevated blood pressure and potential carotid artery disease; and (g) failing to diagnose decedent's carotid artery disease and failing to properly take it into consideration in treating deccdent's hypotcnsion during the course of the surgical procedure. 33. In addition to being vicariously liable for the conduct of its agents, servants and employees specifically identified in paragraph 14 above, Holy Spirit was itself negligent in the following respects: (a) failing to use reasonable care in the maintenance of safe and adequate facilities and equipment; (b) failing to select and retain only competent physicians; (c) failing to oversee all persons who practice medicine within its walls as to patient care; and (d) failing to formulate, adopt and enforce adequate rules and policies to ensure quality care for its patients. COUNT I .WRONGFUL DEATH ACTION 34. Paragraphs 1 through 33 are hereby incorporated by reference as though fully set forth at length herein. 35. Plaintiff brings this action on behalf of decedent's survivors, under and pursuant to the Pennsylvania Wrongful Death Act, for the economic and other losses suffered by said survivors as a result ofdeccdent's death, including his contributions, services, guidance and tutelage, and for funeral, medical and other legally compensable expenses associated with his final illness. WHEREFORE, plaintiff, by her attorneys, Shrager, Spivey & Sachs hereby demands damages of the defendants herein in a sum in excess of fifty thousand dollars ($50,000.00), exclusive of interest, costs and damages for pre-judgment delay. COUNT II .,SURVIVAL ACTION 36. Paragraphs I through 35 arc hereby incorporated by reference as though fully set forth at length herein. 37. Plaintiff brings this action on behalf of the Estate of the decedent, under and pursuant to the Pennsylvania Survival Act, for damages for thc pecuniary losses suffered by decedent's Estate during the period of his life expectancy, as well as for the conscious pain and suffering which he endured as a result as the misconduct of the defendants, and for all other legally compensable expenses incurred in connection with decedents illness. WHEREFORE, plaintiff by her attorneys, Shrager, Spivey & Sachs, hereby demands damages of the defendants herein, jointly and severally, in a sum in excess of fifty thousand dollars ($50,000.00), exclusive of interest, costs and damages for pre-judgment delay. Shrager, Spivey & Sachs Wayne R. Spivey V. Paul Bucci, II Attorneys for Plaintiff VERIFICATION I, V. Paul Bucci, II, Esquire, verify that I am an attorney for Plaintiff and that the statements in the attached Amended Complaint are true and correct to the best of my knowledge, information and belief. This verification is made pursuant to the penalties of Pa.C.S.A. 34904 relating to unsworn falsification to authorities. V. Paul Bucci, II, Esquire Attorney for Plaintiff JOAN A. KICHMAN, Individually and as the Executrix of the Estate of CHARLES C. KICHMAN, Dec'd, Plaintiff V. JAMES PASTOR, WEST SHORE ANESTHESIA ASSOCIATES, LTD., ROBERT P. LONERGAN, LONERGAN ORTHOPEDICS, and HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA .. : : NO. 02-2196 ; ; : : CIVIL ACTION - LAW NOTICE TO PLEAD TO: Joan A. Kichman, Individually and as the Executrix of the Estate of Charles C. Kichman, Dec'd, Plaintiff c/o Wayne R. Spivey, Esquire V. Paul Bucci, II, Esquire Shrager, Spivey & Sachs 32"d Floor, Two Commerce Square 2001 Market Street Philadelphia, PA 19103 You are hereby notified to file a written response to Defendant's Preliminary Objections to Plaintiffs Amended Complaint within twenty (20) days from service hereof or a judgment may be entered against you. METTE, EVANS & WOODSIDE ~teven D. Snyder, EsqUire Sup. Ct. I. D. #34344 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendant Dated: August 21, 2002 Holy Spirit Hospital :303285 _1 JOAN A. KICHMAN, Individually and as the Executrix of the Estate of CHARLES C. KICHMAN, Dec'd, Plaintiff V. JAMES PASTOR, WEST SHORE ANESTHESIA ASSOCIATES, LTD., ROBERT P. LONERGAN, LONERGAN ORTHOPEDICS, and HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-2196 CIVIL ACTION - LAW pRI~J,IMINARY OBJECTIONS OF DEFENDANT, HOLY SPIRIT HOSPITAL, TO PLAINTIFF'S AMF~NDED COMPLAINT The defendant, Holy Spirit Hospital, by its attorneys, Mette, Evans & Woodside, preliminarily objects to the plaintiffs amended complaint as follows: 1. On May 3, 2002, plaintiff filed a complaint alleging negligence on the part of the various defendants in connection with medical care and treatment rendered to plaintiffs decedent. 2. On August 15, 2002, plaintiff fried an amended complaint. A true and correct copy of plaintiff's ~mended complaint is attached hereto as Exhibit "A". MOTION TO STRIKE OR, IN THE ALTERNATIVE, FOR A MORE SPECIFIC COMPLAINT 2. In paragraph 33 of the smended complaint, and subparagraphs thereunder, the plaintiff purports to 9llege negligence on the part of Holy Spirit Hospital. Paragraph 33 provides as follows: 33. In addition to being vicariously liable for the conduct of its agents, servants and employees specifically identified in paragraph 14 above, Holy Spirit was itself negligent in the following respects: (a) failing to use reasonable care in the maintenance of safe and adequate facilities and equipment; (b) failing to select and retain only competent physicians; (c) failing to oversee all persons who practice medicine within its walls as to patient care; and (d) failing to formulate, adopt and enforce adequate rules and policies to ensure quality care for its patients. (See Exhibit "A," page 9.) 4. The averaients set forth in paragraph 33 of the omended complaint purport to set forth corporate negligence theories of liability against Holy Spirit Hospital. 5. The ave~ii~ents of negligence set forth in paragraph 33, however, are nothing more than a verbatim recital of the duties of a hospital as expressed by the Pennsylvania Supreme Court in Thompson v. Nason I-Iosoital, 527 Pa. 330, 339-340, 591 A.2d 703, 707 (1991). 6. The averments set forth in paragraph 33 are simply bald assertions of a breach of the general duties 'of a hospital as identified by the Pennsylvania Supreme Court. 7. Paragraph 33 of the plaintiffs amended complaint, however, falls to set forth any factual basis for the alleged breach of any of the four duties recognized in Thompson. 8. Paragraph 33 falls to set forth with particularity and specificity the factual basis for the allegations contained therein and, therefore, fails to comply with law and rules of court. WHEREFORE, defendant, Holy Spirit Hospital, requests that paragraph 33 of the amended complaint be stricken or, in the alternative, that the plaintiff be directed to specifically set forth the facts in support of her claims in paragraph 33. Date: August 21, 2002 By: Respectfully submitted, METTE, EVANS & WOODSIDE Sup. Ct. I. D. #34344 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendant Holy Spirit Hospital Exhibit A AUG Shrager, Spivey & Sachs By: Wayne tL $pivey, Esqulre/V. Paul Bucci, II, Esquire Identification Numbers: 31017/87394 32nd Floor, Two Commerce 2001 Market Street Philadelphia, ?ennsylvasxia 19103 (215) 568-7771 JOAN A. KICHMAN, Individ-nlly and as the Executrix of the Estate of CHARLES C. KICHMA$q, Dec'd Plaintiff VS. JAMES PASTOR, WEST SHORE ANESTHESIA ASSOCIATES, LTD., ROBEKT P. LON. EaGAN, LONER. GAN ORTHOPEDICS, and HOLY SPIi~-T HOSPITAL OF THE SISTEKS OF CHILISTIAN C~ Defendants CUMBERLAND COUNTY COUtLT OF COMMOlff PL~.4S CIVIL DMSION No.: 02-2196 CIVIL ACTION A2~KrDF. D COMPLA Fs2T Plaintiff, by her attorneys, Shrager, Spivey & Sachs, hereby demands damages of defendants herein, jointly and severally, for a sum in excess of Fifty Thousand Dollars ($50,000.00), exclusive of interest; costs, and damages for prejudgment delay upon causes of action whereof the following are statements: 1. Plaintiff, loan A. Kichman, an adult individual, is a citizen of the Commonwealth of Pennsylvania, residing therein at 356 Old Stage Road, Lewisbcrry. She is the duly appointed Executrix of the Estate of Charles C. Kichman, deceased (hereinafter referred to as "Mr. Kichman"), having been appointed same by the Register of Wills of York County on February 19, 2002.. 2. Defendant, ~ames Pastor (hereinafter referred to as "Dr. Pastor"), an adult individ~l, is a citizen and resident of the Commonwealth of Pennsylvania and at all times relevant hereto has been engaged in the practice of medicine with an office and place of business located at 503 N. 21th Street, Camp ~ill, Pennsylvania. 3. At all times pertinent hereto, Dr. Pastor was engaged in the practice of medicine, pursuing the specialty of anesthesiology, and was obliged to bring to bear in the practice of his profession the professional skills, knowledge and experience which he possessed or was obliged to posses, and to pursue his profession in accordance with reasonably safe and acceptable standards of medicine, in general, and anesthesiology, in particular. 4. Defendant, West Shore Anesthesia Associates, Ltd. (hereinafter referred to as "West Shore"), is a corporate entity, organized and existing under the laws of ?ennsylvania, with an office and place of business located at 503 N. 21th Street, Camp Hill, ?ennsylvania. 5. At all times pertinent hereto, West Shore acted through its agents, servants, and/or employees, including Dr. Pastor, John II. Benedict, M.D. and Mark Bryan Whimey, M.D. (hereinafter referred to as "Dr. Benedict" and "Dr. Whitney"), in conjunction with the care rendered to Mr. Kichman. At all times pertinent hereto, the agents, servants and/or employees herein identified of West Shore were acting within the course and scope of their employment, agency, or apparent agency in conjunction with the care rendered to Mr. Kichman. 6. Defendant, Robert ?. Lonergan (hereinafter referred to as "Dr. Lonergan"), an adult individ~l, is a citizen and resident of the Commonwealth of Pennsylvania and at all times relevant hereto has been engaged in the practice of medicine with an office and place of business located at 207 House Avenue #105, Camp Hill, Pennsylvania. 7. At all times pertinent hereto, Dr. Lonergan was engaged in the practice of medicine, pursuing the specialty of orthopedic surgery, and was obliged to bring to bear in the practice of his profession the professional skills, knowIedge and experience which he possessed or was obhged to posses, and to pursue his profession in accordance with reasonably safe and acceptable standards of medicine, in general, and orthopaedic surgery, in particular. 8. It is believed and therefore averred that defendant, Lonergan Orthopedics, is a corporate entity, organized and existing under the laws of Pennsylvania, with an office and place of business located at 207 House Avenue #105, Camp Hill, Pennsylvania. 9. At all times pertinent hereto, Lonergan Orthopedics acted through its agents, servants, and/or employees, including Dr. Lonergan, in conjunction with the care rendered to Mr. Kichman. At all times pertinent hereto, the agents, servants, and/or employees of Lonergan Orthopedics were acting within the course and scope of their employment, agency, or apparent agency in conjunction with the care rendered to Mr. Kichman. 10. Defendant, Holy Spirit Hospital of the Sisters of Christian Charity (hereinafter referred to as "Holy Spirit"), is a corporation, organized and existing under and purs~nnt to the laws of the Commonwealth of Pennsylvania and at all times pertinent hereto was operating a hospital at S03 N. 21th Street, Camp I-Iill, Pennsylvania. 11. _At all times pertinent hereto, Holy Spirit held itself out in the community as being a full service medical care institution, properly equipped and staffed, and rendering qlmlity medical care, acting through its depamnents, medical groups, staff members and other agents, servants and employees. 12. The agents, servants and employees of West Shore were Dr. Pastor, Dr. Benedict and Dr. Whitney, who rendered, or undertook to render, medical care and treatment to Mr. I~ichman as set forth below. 13. The agents, servants and employees of Lonergan Orthopedics included Dr. Lonergan as well as any other medical treatment providers employed by Lonergan Orthopedics who rendered, or undertook to render, medical care and treatment to Mr. Kichman as set forth below. 14. The act~ml or ostensible agents, servants and employees of t-Ioly Spirit included Dr. Pastor, Dr. Benedict, Dr. Whitney and Dr. Lonergan, as well as any other medical treatment providers employed by Holy Spirit who rendered, or undertook to render, medical care and treatment to plaintiff's decedent from May 14, 2000 through, and including, May 28, 2000. The specific acts of negligence that these actual or ostensible agents, servants and employees committed within the scope of said agency are described in detail below. 15. Defendants, Dr. Pastor and Dr. Lonergan, West Shore Anesthesia Associates, Lonergan Orthopedics and Holy Spirit, each presendy treat patients in Cumberland County, and thus regularly conduct business therein, within the meaning of the Pennsylvania Rules of Civil Procedure. 16. At the time of the events giving rise to this action, plaintiff and her decedent were citizens, residents and domiciliaries of the Commonwealth of Pennsylvania; decedent was a citizen, resident and domiciliary of the Commonwealth of Pennsylvania at the time of his death. FACTUAL BACKGROUND 17. On or about May 14, 2000, Mr. Kichman, sustained an injury to his right leg and knee when he accidentally stepped into a mole or groundhog hole in his yard. Mr. Kichman had a prior medical history which included coronary artery disease, hypertension, hyperlipidemia, and a right total knee replacement approximately five years earlier. 18. At that rime, Mr. Kichman was transported, via ambulance, to the Emergency Department at Holy Spirit whereupon X-rays revealed that he had sustained a spiral, comminuted fracture through his distal femur which involved the proximal end of the revision prosthesis of the total knee replacement. 19. On or about May 15, 2000, Mr. Kichman was admitted by Dr. Lonergan to Holy Spirit for definitive care and treatment of his injuries. 20. On or about May 18, 2000, Mr. Kichman was taken to an operating room at Holy Spirit, whereupon Dr. Lonergan, as th~ orthopedic surgeon, and Dr. Pastor, as the attending anesthesiologist, performed an open reduction and internal fncafion of the right femoral fracture and revision of the right total knee replacement. 21. For this surgical procedure, Mr. Kichman was placed under general anesthesia and had an opening blood pressure recorded at 200/100. Arterial blood pressure monitoring was not used. 22. Shortly after the surgical procedure was initiated, there was a period of hypotension that lasted for more than 15 minutes which was treated with ephedrine 10rog and 10 mg. 23. Subsequently, during the surgical procedure, there was another period of hypotension that exceeded 45 minutes which was also treated with ephedrine 10mg and 10rog. 24. Postoperatively, Mr. Kichman suffered an ischemic stroke from which he did not recover. Consequently, Mr. Kiclarnan died on May 28, 2000. 25. The decedent's death was caused by the negligence of the defendants, as set forth in detail below, and was contributed to in no way by the plaintiff or by the decedent. 26. Mr. Kichman was survived by his wife, ~oan A. Kichman, the plaintiff herein, and three (3) adult children who live at the following addresses: Survivor Matthew C. Kichman Michael W. Kichman Kandis Marie Heath Address 355 Old Stage Rd. Lewisberry, PA 17339 716-B Ligget Ave. Persidio San Francisco, CA 94129 202 Glenwood Rd. Chapel Hill, NC 27516 27. Notice of this action has been served upon all of the persons identified in paragraph Relationship To Decedent Son Son Daughter 26, above. 28. PlaintifFs decedent brought no claim for the injuries complained of herein during his 29. Dr. Lonergash Dr. Pastor, Lonergma Orthopedics, West Shore, and Dr. Benedict and Dr. Whimey, as the agents and/or employees of defendant, West Shore, were negligent in the following respects: (a) failing to adequately maintain decedenfs blood pressure during surgery in light of his known history of hypertension and documented cardiovascular status; (b) failing to prevent deccdenfs blood pressure from falling to hypotensive levels and permitting decedenfs blood pressure to remain at hypotensive levels for extended periods of time; (c) failing to adequately monitor decedenfs blood pressure and respond to the acute periods of hypotension; (d) failing to abandon the surgical procedure when prolonged periods of hypotension were encountered; (e) failing to adequately treat decedenfs hypotensive condition during the course of the surgical procedure with proper medications or medicines; (0 failing to uriliTe spinal anesthesia in a patient with.a known history of elevated blood pressure and potential carotid artery disease; and (g) failing to diagnose decedenfs carotid artery disease and failing to properly take it into consideration in treating decedenfs hypotension during the course of the surgical procedure. 30. In addition to his alleged negligence, Dr. Loncrgan further committed a technical battery upon decedent by: (a) failing to inform the decedent of the risks and potential for complications, prior to obtaining his consent to perform the surgical procedure; and (b) failing to inform the decedent of the alternatives to the surgical procedure he performed upon him, or alternative means of performing the procedure he performed, before obtaining his consent to perform such a procedure. 31. In addition to his alleged negligence, Dr. Pastor further committed a technical battery upon decedent by: (a) failing to inform the decedent of the risks and potential for complications, prior to obtaining his consent to perform the surgical procedure; and (b) failing to inform the decedent of the alternatives to the surgical procedure he performed upon him, or alternative means of performing the procedure he performed, before obtaining his consent to perform such a procedure. 32. Holy Spirit is vicariously liable for the conduct of its agents, apparent agents, servants and employees who negligently: (a) failed to adequately maintain decedent,s blood pressure during surgery in light of his lmown history of hypertension and documented cardiovascular status; (b) failed to prevent deceddent,s blood pressure from failing to hypotensive levels and permitted decedent's blood pressure to remain at hypotensive levels for extended periods of time; (c) failed to adequately monitor decedent's blood pressure and respond to the acute periods of hypotension; (d) failing to abandon the surgical procedure when prolonged periods of hypotension were encountered; (e) failing to adequately treat decedent,s hypotensive condition during the course of the surgical procedure with proper medications or medicines; failing to utilize spinal anesthesia in a patient with a known history of elevated blood pressure and potential carotid artery disease; and (g) failing to diagnose decedent's carotid artery disease and failing to properly take it into consideration in treating decedent's hypotension during the course of the surgical procedUre. 33. In addition to being vicariously liable for the conduct of its agents, servants and employees specifically identified in paragraph 14 above, Holy Spirit was itself negligent in the following respects: (a) failing to use reasonable care in the maintenance of safe and adequate facilities and equipment; (b) failing to select and retain only competent physicians; (c) failing to oversee all persons who practice medicine within its walls as to patient care; and (d) failing to formulate, adopt and enforce adequate rules and policies to ensUre quality care for its patients. COUNT I WI~ONGFUL DEATH ACTION 34. Paragraphs 1 through 33 are hereby incorporated by reference as though fully set forth at length herein. 35. Plaintiff brings this action on behalf of decedent's survivors, under and pUrsuant to the Pennsylvania Wrongful Death Act, for the economic and other losses s-ffered by said survivors as a result of decedent's death, including his contributions, services, guidance and tutelage, and for funeral, medical and other legally compensable expenses associated with his final illness. WHEILEFORE, plaintiff, by her attorneys, Shrager, Spivey & Sachs hereby demands damages of the defendants herein in a sum in excess of fifty thousand dollars ($50,000.00), exclusive of interest, costs and damages for pre-judgment delay. COUNT II SURVIVAL ACTION 36. Paragraphs 1 through 35 are hereby incorporated by reference as though fully set forth at length herein. 37. Plaintiff brings this action on behalf of the Estate of the decedent, under and pursuant to the Pennsylvania Survival Act, for damages for the pecuniary losses suffered by decedent's Estate during the period of his life expectancy, as well as for the conscious pain and suffering which he endured as a result as the misconduct of the defendants, and for all other legally compensable expenses incurred in connection with decedent's illness. WHEREFORE, plaintiff by her attorneys, Shrager, Spivey & Sachs, hereby demands damages of the defendants herein, jointly and severally, in a sum in excess of fifty thousand dollars ($50,000.00), exclusive of interest, costs and damages for pre-judgment delay. Shrager, Spivey & Sachs Wayne 1~. Spivey V. Paul Bucci, II Attorneys for Plaintiff VERIFICATION I, V. Paul Bucci, II, Esquire, verify that I am an attorney for Plaintiff and that the statements in the attached Amended Complaint are true and correct to the best of my knowledge, information and belief. This verification is made pursuant to the penalties of ?a.C.S.A.~4904 relating to unswom falsification to authorities. V. ?aui Bucci, II, Esquire Attorney for ?laintiff CERTIFICATE OF SERVICE I certify that I sm this day serving a copy of the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of s~me in the United States Mail, Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: Wayne R. Spivey, Esquire V. Paul Bucci, II, Esquire Shrager, Spivey & Sachs 32nd Floor, Two Commerce Square 2001 Market Street Philadelphia, PA 19103 Lonergan Orthopedics 207 House Avenue #105 Camp Hill, PA 17011 Michael M. Badowski, Esquire Stephen Banko, Jr., Esquire Margolis Edelstein P. O. Box 932 Harrisburg, PA 17108-0932 Joseph P. Hafer, Esquire Thomas, Thomas & Hafer 305 North Front Street P. O. Box 999 Harrisburg, PA 17108-0999 DATE: August 21, 2002 METTE, EVANS & WOODSIDE Steven D. Sny2er, ~squire Sup. Ct. I. D. #34344 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendant Holy Spirit Hospital Shrager, Spivey & Sachs By: Wayne R. Spivey, Esquire/V. Paul Bucci, II, Esquire Identification Numbers: 31017/87394 32nd Floor, Two Commerce Square 2001 Market Street Philadelphia, Pennsylvania 19103 (215) 568-7771 JOAN A. KICHMAN, Individually and as the Executrix of the Estate of CHARLES C. KICHMAN, Dec'd Plaintiff VS. . JAMES PASTOR and : WEST SHORE ANESTHESIA : ASSOCIATES, LTD. and : ROBERT p. LONERGAN and : LONERGAN ORTHOPEDICS and : HOLY SPIRIT HOSPITAL OF THE : SISTERS OF CHRISTIAN CHARITY : Defendants : : CUMBERLAND COUNTY : COURT OF COMMONPLF4S CIVIL DMSION ; No.: 02-2196 Civil _PRAECIPE TO SUBSTITUTE VERIFICATION TO THE PROTHONOTARY: Kindly substitute the attached Verification of Joan A. Kichman for that of V. Paul Bucci, II, Esquire to Plaintiffs' Second Amended Complaint, with reference to the above- captioned matter. Shrager, Spivey & Sachs By: V. Paul Bucci, II Attorney for Plaintiffs VERIFICATION Joan A. Kichman hereby states that she is the plaintiff in the foregoing action and that the foregoing averments in the Complaint are true and correct to the best of her knowledge, information and belief. The language of said averments is that of counsel and not of plaintiff. Plaintiffhas read the Complaint and to the extent that it is based upon information which she has given to her counsel, it is tree and correct to the best of her knowledge, information and belief. To the extent that the language of the Complaint is that of counsel, she has relied upon counsel in making this verification. This Statement is made subject to the penalties of 18 Pa. C.S. Section 4904, rehfing to unsworn falsification to authorities. THOMAS, THOMAS & HAFER, LLP By: Joseph P. Hafer, Esquire Attorney I.D. No. 07186 Hugh P. O'Neill, III, Esquire Attorney I.D. No. 69986 P.O. Box 999 Harrisburg, PA 17108 (717)255-7613 Attorneys for Defendant: JOAN A. KICHMAN, Individually and as the Executrix of the Estate of CHARLES C. KICHMAN, Deceased, Plaintiff, Vo JAMES PASTOR, WEST SHORE ANESTHESIA ASSOCIATES, LTD., ROBERT P. LONERGAN, LONERGAN ORTHOPEDICS and HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, Defendants. Robert P. Lonergan COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL DIVISION No. 02-2196 JURY TRIAL DEMANDED NOTICE TO PLEAD You are hereby notified to plead to the enclosed Answer and New Matter within twenty (20) days from service hereof or a default judgment may be entered~g~ THO~~.;.;~ HAFER, LLP Joseph P. Haler, Esquire I.D. No. 07186 Hugh P. O'Neill, Ill, Esquire Attorney I.D. No. 69986 P. O. Box 999 Harrisburg, PA 17108-0999 Phone: (717) 237-7100 Attorneys for Defendant Robert P. Lonergan THOMAS, THOMAS & HAFER, LLP By: Joseph P. Hafer, Esquire Attorney I.D. No. 07186 Hugh P. O'Neill, m, Esquire Attorney LD. No. 69986 P.O. Box 999 Harrisburg, PA 17108 (717)255-7613 Attorneys for Defendant: JOAN A. KICHMAN, Individually and as the Executrix of the Estate of CHARLES C. KICHMAN, Deceased, Plaintiff, Vo JAMES PASTOR, WEST SHORE ANESTHESIA ASSOCIATES, LTD., ROBERT P. LONERGAN, LONERGAN ORTHOPEDICS and HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, Defendants. Robert P. Lonergan COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL DIVISION No. 02-2196 JURY TRIAL DEMANDED ANSWER AND NEW MATTER OF DEFENDANT ROBERT P. LONERGAN TO PLAINTIFF'S CIVIL ACTION AMENDED COMPLAINT Defendant Robert P. Lonergan, by and through his counsel, Thomas, Thomas & Hafer, LLP, hereby responds to Plaintiff's civil action Amended Complaint, and avers as follows: 1-5. Denied. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form an opinion or believe as to the truth or falsity thereof. By way of further response, all allegations are generally denied pursuant to Pa.R.C.P. 1029(e). All allegations are placed at issue and strict proof thereof is demanded at the time of trial. 6. Admitted. 7. Denied as stated. Rather, it is only admitted that Robert P. Lonergan was a duly licensed physician under the laws of the Commonwealth of Pennsylvania and was board certified in orthopedic surgery. By way of further response, all other ailegations contained in this paragraph are generaily denied pursuant to Pa.R.C.P. 1029(e). All allegations are placed at issue and strict proof thereof is demanded at the time of trial. 8. Denied. It is specifically denied that Lonergan Orthopedics is a corporate entity organized and existing under the laws of the Commonwealth of Pennsylvania. Rather, there is no such entity, corporate or otherwise, known as Lonergan Orthopedics existing under the business laws of the Commonwealth of Pennsylvania. 9. Denied. All allegations of agency, servitude and employment are specifically denied as Plaintiff fails to identify the aileged agent, servants and/or employees and accordingly, all allegations are specifically denied. Moreover, all allegations of agency, servitude and employment relating to Dr. Lonergan are also specifically denied. Moreover, all other allegations are generally denied as conclusions of law and generally pursuant to Pa.R.C.P. 1029(e). All allegations are placed at issue and strict proof thereof is demanded at the time of trial. 10-12. Denied. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form an opinion or belief as to the truth or falsity of the allegations contained therein. Moreover, all allegations are generally denied pursuant to Pa.R.C.P. 1029(e). All allegations are placed at issue and strict proof thereof is demanded at the time of trial. 13. Denied. Plaintiff fails to identify the alleged agents, servants and employees of Lonergan Orthopedics and accordingly, all said allegations are deemed denied specifically. All other allegations are denied as conclusions of law and generally denied pursuant to Pa.R.C.P. 1029(e). All allegations are placed at issue and strict proof thereof is demanded at the time of triai. 14. Denied. It is specifically denied that Dr. Lonergan was an actual or ostensible agent, servant or employee of Defendant Holy Spirit. Moreover, all other ailegations are denied as conclusions of law and generally denied pursuant to Pa.R.C.P. 1029(e). All allegations are placed at issue and strict proof thereof is demanded at the time of trial. 15. Admitted in part, denied in part. It is only admitted that Dr. Lonergan regularly conducts business in Cumberland County, Pennsylvania. Moreover, the other allegations contained in this paragraph are directed to parties other than Answering Defendant and accordingly, no answer is deemed required. To the extent an answer is deemed required, all other allegations are denied pursuant to Pa.R.C.P. 1029(e). All allegations are placed at issue and strict proof there is demanded at the time of trial. 16. Denied. After reasonable investigation, Answering Defendant is without sufficient knowledge or information to form an opinion or belief as to the troth or falsity of the allegations contained therein. All allegations are placed at issue and strict proof thereof is demanded at the time of trial. FACTIJAL BACKGROUND 17-18. Denied. Ail allegations are generally denied pursuant to Pa.R.C.P. 1029(e). All allegations are placed at issue and strict proof thereof is demanded at the time of trial. 19. Denied. The medical records regarding Mr. Kichman speak for themselves. Moreover, all allegations are generally denied pursuant to Pa.R.C.P. I029(e). All allegations are placed at issue and strict proof thereof is demanded at the time of trial. 20. Denied. Rather, the medical records regarding Mr. Kichman speak for themselves. All allegations are generally denied pursuant to Pa.R.C.P. 1029(e). All allegations are placed at issue and strict proof thereof is demanded at the time of trial. 21. Admitted in part, denied part. It is only admitted that Dr. Lonergan performed surgery on Mr. Kichman at Holy Spirit Hospital on May 18, 2000. By way of further response, the medical records regarding Mr. Kichman speak for themselves. All other allegations are generally denied pursuant to Pa.R.C.P. 1029(e). All allegations are placed at issue and strict proof thereof is demanded at the time of trial. 21-24. Denied. The medical records regarding Mr. Kichman speak for themselves. By way of further response, all allegations are generally denied pursuant to Pa.R.C.P. 1029(e). All allegations are placed at issue and strict proof thereof is demanded at the time of trial. 25-28. Denied. All allegations of negligence against Answering Defendant are specifically denied as a conclusion of law and generally denied pursuant to Pa.R.C.P. 1029(e). All other allegations are generally denied as conclusions of law and further generally denied pursuant to Pa.R.C.P. 1029(e). Ail allegations are placed at issue and strict proof thereof is demanded at the time of trial. 29. Denied. All allegations of negligence as described in Subparagraphs a-g as to Answering Defendant are specifically denied as Answering Defendant acted with the requisite standard of care at all times relevant. Moreover, all allegations are denied as conclusions of law and are generally denied pursuant to Pa.R.C.P. 1029(e). Ail allegations are placed at issue and strict proof thereof is demanded at the time of trial. 30. Denied. All allegations of technical battery as referred to in Subparagraphs a-b are specifically denied as Dr. Lonergan obtained valid informed consent upon Plaintiff's decedent. Moreover, all said allegations are denied as conclusions of law and are further generally denied pursuant to Pa.R.C.P. 1029(e). Ail allegations are placed at issue and strict proof thereof is demanded at the time of trial. 31-33. Denied. The allegations contained in these paragraphs are directed to a party other than Answering Defendant and no response is required. However, to the extent a reply is required 4 by Answering Defendant, all allegations are denied as conclusions of law and are generally denied pursuant to Pa.R.C.P. 1029(e). All allegations are placed at issue and strict proof thereof is demanded at the time of trial. COUNT I WRONGFUL DEATH ACTION 34. Answering Defendant incorporates his responses to Paragraphs 1 through 33 of Plaintiffs Complaint as if set forth herein al length. 35. Denied. All allegations are denied as conclusions of law and are generally denied pursuant to Pa.R.C.P. 1029(e). All allegations are placed at issue and strict proof thereof is demanded at the time of trial. WHEREFORE, Answering Defendant demands judgment in his favor and against all other parties together with costs and attorneys' fees. COUNT II SURVIVAL ACTION 36. Answering Defendant incorporates his responses to Paragraphs 1 through 35 of Plaintiffs Complaint as if set forth herein at length. 37. Denied. All allegations contained in this Paragraph are denied as conclusions of law and are further generally denied pursuant to Pa.R.C.P. 1029(e). All allegations are placed at issue and strict proof thereof is demanded at the time of trial. WHEREFORE, Answering Defendant demands judgment in his favor together with costs and attorneys' fees. NEW MATTER 38. Answering Defendants incorporate Paragraphs 1 through 37 of this Answer as if set forth at length herein. 39. Plaintiff fails to state a cause of action against Answering Defendant upon which relief can be granted. 40. Answering Defendant raises ail affirmative defenses of the Heaithcare Services Malpractice Act, 40 P.S. § 1301.101, et seq. 41. For the purposes of preserving the same, and subject to further discovery, ail or some of Plaintiff's claims are time-barred due to the expiration of the applicable Statute of Limitations. 42. For the purpose of preserving the same, and subject to discovery, ail or some of Plaintiff's claims may be barred pursuant to the affimtative defenses of release, offset, or accord and satisfaction. 43. At no time relevant hereto was Defendant Robert P. Lonergan an agent or servant or employee acting on behaif of any other Defendants in this action. 44. At no time relevant hereto was any other natural person, partnership, corporation, or other legai entity acting or serving as an agent, servant, employee, or otherwise for or on behaif of Robert P. Lonergan, M.D. 45. Any additionai ailegation of negligence other than as specifically set forth in Plaintiff' s Complaint based on Plaintiff's ailegation of negligence "including but not limited to" are or will be barred by the Statue of Limitations. 46. In the event that it is determined that Answering Defendant was negligent with regard to any of the ailegations contained in and with respect to Plaintiff' s Complaint, said allegations being specifically denied, discovery may establish that said negligence was superseded by the intervening negligent acts of other persons, parties, and/or organizations other than Answering Defendant, and over whom said Answering Defendant had no control, right, or responsibility, and therefore Answering Defendant is not liable. 47. To the extent that the evidence may show that other persons, partnerships, corporations, or other legal entities caused or contributed to the injuries or the pm-existing condition of Plaintiff, then the conduct of the Answering Defendant was not the legal cause of such conditions or injuries. 48. Any acts or omissions of Answering Defendant alleged to constitute negligence were not substantial factors contributing to the injuries and damages alleged in Plaintiff's Complaint. 49. If any injuries and damages, as alleged in Plaintiff's Complaint, were caused in whole or in part by persons or entities over whom Answering Defendants had no duty to supervise or control, then Answering Defendant is not liable, and Plaintiff may not recover against them. 50. Plaintiff's injuries and losses, if any, were not caused by the conduct or negligence of Answering Defendant, but rather were caused by pre-existing medical conditions and causes beyond the control of Answering Defendant, and therefore Plaintiff may not recover against Answering Defendant. 51. The acts or omissions of others, and not Answering Defendant, may have constituted intervening and/or superseding causes of the injuries and/or damages alleged to have been sustained by Plaintiff, and Answering Defendant cannot, pursuant to Pennsylvania law, be held liable for the alleged injuries to Plaintiff. 7 52. The incident and/or damages described in Plaintiff's Complaint were caused or contributed to by Plaintiff. 53. The Plaintiff may have assumed the risk. 54. The Plaintiff may have been contributorily negligent. 55. Answering Defendant raises ail affirmative defenses of the Medicai Care Availability and Reduction of Error (M'care) Act a/k/a Act 13 of 2002 as a limit/bar to Plaintiff's claims. 56. Insofar as Answering Defendant or any person for whom he is or may be vicariously liable, elected a treatment modality which is recognized as proper, but may differ from another appropriate treatment modaiity, then Answering Defendant raises the "two schools of thought" defense. WHEREFORE, Answering Defendant demands judgment in their favor without cost to them. RESPECTFULLY SUBM~F~ED, THOMAS~ HAFER, LLP Joseph P.A~quire I.D. No. 07186 Hugh P. O'Neill, Iff, Esquire Attorney I.D. No. 69986 P. O. Box 999 Harrisburg, PA 17108-0999 Phone: (717) 237-7100 Attorneys for Defendant Robert P. Lonergan VERIFICATION I hereby affirm that the following facts are correct: The attached ANSWER AND NEW MATTER OF DEFENDANT ROBERT P. LONERGAN TO PLAINTIFF'S AMENDED COMPLAINT are based both upon information I have furnished to my Counsel and information that has been gathered by my Counsel in preparation for the defense of the Lawsuit. The language of the ANSWER AND NEW MATTER OF DEFENDANT ROBERT P. LONERGAN TO PLAINTIFF'S AMENDED COMPLAINT is that of Counsel, and not of mine. I have read the ANSWER AND NEW MATTER OF DEFENDANT ROBERT P. LONERGAN TO PLAINTIFF'S AMENDED COMPLAINT and, to the extent that the Answers and Objections are based upon information that I have given to my Counsel, it is tree and correct to the best of my knowledge, infoxmation, and belief. To the extent that the content of ANSWER AND NEW MATTER OF DEFENDANT ROBERT P. LONERGAN TO PLAINTIFF'S AMENDED COMPLAINT is that of Counsel, I have relied upon Counsel in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid ANSWER AND NEW MATTER OF DEFENDANT ROBERT P. LONERGAN TO PLAINTIFF'S AMENDED COMPLAINT are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unswom falsification to authorities. Date: c--~~,,-,/. _ __~ , 2002 CERTIFICATE OF SERVICE I, Hugh P. O'Neill, HI, an employee of the law offices of Thomas, Thomas & Hafer, LLP, do hereby certify that I served a copy of the foregoing document by depositing the same in the United States mail, first class, postage prepaid, as follows: Wayne R. Spivey, Esquire V. Paul Bucci, II, Esquire Shrager, Spivey & Sachs 32na Floor, Two Commerce Square 2001 Market Street Philadelphia, PA 19103 Michael Badowski, Esquire Margolis Edelstein P.O. Box 932 Harrisburg, PA 17108-0932 Craig Stone, Esquire Mette, Evans & Woodside 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 Date: : 179856.1 HUGH P./O'NEILL, III Shrager, Spivey & Sachs By: Wayne R. Spivey, Esquire/V. Paul Bucci, II, Esquire Identification Numbers: 31017/87394 32nd Floor, Two Commerce Square 2001 Market Street Philadelphia, Pennsylvania 19103 (215) 568-7771 JOAN A. KICHMAN, Individually and as the Executrix of the Estate of CHARLES C. KICHMAN, Dec'd Plaintiff VS. JAMES PASTOR and : WEST SHORE ANESTHESIA : ASSOCIATES, LTD. and : ROBERT P. LONERGAN and : LONERGAN ORTHOPEDICS and : HOLY SPIRIT HOSPITAL OF THE : SISTERS OF CHRISTIAN CHARITY : Defendants : : CUMBERLAND COUNTY : COURT OF COMMONPLF~AS CIVIL DMSION : : No.: 02-2196 Civil PLAINTIFF'S RESPONSE TO NEW MATTER OF ROBERT P. LONERGAN TO PLAINTIFF'S AMENDED COMPLAINT Plaintiff, by her attorneys, Shrager, Spivey & Sachs, hereby responds to the New Matter of Defendant, Robert P. Lonergan, as follows: 38 - 56. Each of the averments set forth in these paragraphs constitute conclusions of law, to which no response is required. By way of further response, to the extent any such averments are deemed to constitute factual allegations, same are denied and strict proof thereof, to the extent relevant, is demanded at the time of trial. WHEREFORE, Plaintiff demands damages of the defendants in a sum in excess of Fifty Thousand Dollars ($50,000.00), plus interests, costs of suit, and damages for delay. Shrager, Spivey & Sachs W~ne R. Spivey~ Attorney for Plaintiff -2- VERIFICATION I, Wayne R. Spivey, Esquire hereby states that he is counsel for the plaintiffs in the foregoing action and that the averments in the foregoing are true and correct to the best of his knowledge, information and belief. This Statement is made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. · Spivey ! MICHAEL M. BADOWSKI, ESQUIRE Pa. Supreme Court I.D. No. 32646 STEPHEN L. BANKO, JR., ESQUIRE Pa. Supreme Court I.D. No. 41727 MARGOLIS EDELSTEIN 3510 Trindle Road Camp Hill, Pennsylvania 17011 Telephone: Fax= E-Mail .. [717] 975-8114 [717] 975-8124 mbadowski®margolisedelstein.com sbanko~margolisedelstein.com Attorneys for Defendants, Jam~s Pastor, M.D. and West Shore Anesthesia Associates, Ltd. JOAN KICHMAN, INDIVIDUALLY AND : AS THE EXECUTRIX OF THE ESTATE : OF CHARLES KICHMAN, DECEASED, : PLAINTIFF, : : VS. : : JAMES PASTOR, M.D., : WEST SHORE ANESTHESIA ASSOCIATES; LTD., ROBERT P. LONERGAN, M.D., : LONERGAN ORTHOPEDICS, : HOLY SPIRIT HOSPITAL OF THE : SISTERS OF CHRISTIAN CHARITY, : DEFENDANTS. : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DOCKET NO. 02-2196-CIVIL JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Plaintiff and her counsel, Wayne R. Spivey, Esquire, SHRAGER, SPIVEY & SACHS, 32"~ Floor, Two Commerce Square, 2001 Market Street, Philadelphia, PA 19103 YOU ARE HEREBY NOTIFIED to plead to the enclosed NEW MATTER within twenty (20) days of service hereof, or a default judgment may be entered G~f .E~/~ againstM~Y°U' /- , Date: ~//~/~ ~ By: M~CHAEL M. ~DOWSKI Attorneys for Defendants, JAF~ES PASTOR, M.D., ~ WEST SHORE ANESTHESIA ASSOCIATES, LTD. MICHAEL M. BADOWSKI, ESQUIRE Pa. Supreme Court I.D. No. 32646 STEPHEN L. BANKO, JR., ESQUIRE Pa. Supreme Court I.D. No. 41727 MAR~OLIS EDELSTEIN 3510 Trindle Road Camp Hill, Pennsylvania 17011 Telephone Fax.. E-Mail [717] 975-8114 [717] 975-8124 mb&dowski~margolisedelstein.com sbanko~margolisedelstein.com Attorneys for Defendants, James Pastor, M.D. and West Shore Anesthesia Associates, Ltd. JOAN KICHMAN, INDIVIDUALLY ~ AS THE EXECUTRIX OF THE ESTATE OF CHARLES KICHMAN, DECEASED, PLAINTIFF, VS. JAMES PASTOR, M.D., WEST SHORE ANESTHESIA ASSOCIATES LTD., ROBERT P. LONERGAN, M.D., LONERGAN ORTHOPEDICS, HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, DEFENDANTS. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DOCKET NO. 02-2196-CIVIL JURY TRIAL DEMANDED ANSWER AND NEW MATTER OF DEFENDANTS, JAMES PASTOR, M.D., AND WEST SHORE ANESTHESIA ASSOCIATES, LTD., TO PLAINTIFF'S AMENDED COMPLAINT Defendants, Associates, 1. Denied. After reasonable investigation, Answering James Pastor, M.D., and West Shore Anesthesia Ltd. (hereinafter collectively referred to as ~Dr. Pastor"), are without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph of the Plaintiff's Amended Complaint and, therefore, said averments are denied. 2. Admitted. 3. Admitted. 4. Admitted in part and denied in part. admitted that West Shore Anesthesia Associates, Ltd. It is (hereinafter referred to as "WSAA"), is a corporate entity organized and existing under the laws of the Commonwealth of Pennsylvania. By way of further answer, WSAA maintains its office billing address at P.O. Box 1050, Camp Hill, PA 17011. The anesthesiologist employees of WSAA provide anesthesiology services at the Holy Spirit hospital facilities located at 503 North 21st Street, Camp Hill, PA 17011. 5. The averments of this paragraph of the Plaintiff's Amended Complaint are admitted to the extent that at the time pertinent to their professional involvement in this matter, Dr. Pastor, Dr. Benedict, and Dr. Whitney were acting within the course and scope of his employment with WSAA. 6-11. The averments of these paragraphs of the Plaintiff's Amended Complaint are not directed towards Dr. Pastor and, therefore, no response is required. 12. The averments of this paragraph of the Plaintiff's Amended Complaint are admitted to the extent that at the time pertinent to their professional involvement in this matter, Dr. Pastor, Dr. Benedict, and Dr. Whitney acted within the course and scope of their employment with WSAA. - 2 13. No response required. 14. The averments of this paragraph of the Plaintiff's Amended Complaint are denied as to Dr. Pastor, Dr. Benedict and Dr. Whitney. By way of further answer, at all times and for all purposes relevant to their professional involvement in this matter, Dr. Pastor, Dr. Benedict, and Dr. Whitney acted as independently practicing anesthesiologists in the employment of WSAA. Dr. Pastor, Dr. Benedict, and Dr. Whitney were not actual or ostensible employee, agents or servants of Co-Defendant, Holy Spirit Hospital. 15. Denied as stated as to Dr. Pastor and WSAA. By way of further answer, WSAA, as a business entity, does not treat patients. Dr. Pastor, as an employee of WSAA does provide anesthesiology services at the Holy Spirit Hospital in Cumberland County. 16. Denied. After reasonable investigation, Dr. Pastor is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph of the Plaintiff's Amended Complaint and, therefore, said averments are denied. FACTUAL BACKGROUND 17-19. It is admitted that the averments of this paragraph of Plaintiff's Amended Complaint partially recite the history set out in Charles Kichman's 5/15/2000 Holy Spirit Hospital chart. 20. Denied. To the contrary, as reflected in Charles Kichman's 5/15/2000 Holy Spirit Hospital chart, Mr. Kichman was taken to the operating room at the Holy Spirit Hospital on May 18, 2000, for open reduction and internal fixation of right femoral fracture and revision of right total knee replacement. Dr. Pastor began the procedure as the attending anesthesiologist. 21. Admitted. 22-23. Denied. The averments of these paragraphs of Plaintiff's Amended Complaint are generally denied in accordance with Pennsylvania Rule of Civil Procedure 1029(e). By way of accurate answer, Dr. Pastor incorporates herein by reference the anesthesia record referable to Mr. Kichman's 5/18/2000 operative procedure at the Holy Spirit Hospital. 24. Admitted in part and denied in part. Charles Kichman's 5/15/2000 Holy Spirit Hospital chart indicates that post-operatively it was determined that Mr. Kichman suffered thrombolytic stroke and that he died on May 28, 2000. 25. Denied. The averments of this paragraph of the Plaintiff's Amended Complaint recite medical and legal conclusions to which no response is required. It is, however, averred that at all times and for all purposes relevant to his professional involvement in this matter, Dr. Pastor was in no way negligent. At all times and for all purposes relevant to his professional involvement in this matter, Dr. Pastor acted appropriately and in a manner commensurate with standards of anesthesiology services applicable under similar circumstances. Dr. Pastor did not negligently cause or negligently contribute to cause the death of Charles Kichman. 26. Denied. After reasonable investigation, Dr. Pastor is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph of the Plaintiff's Amended Complaint and, therefore, said averments are denied. 27. 28. Admitted as to Dr. Pastor. Denied. After reasonable investigation, Dr. Pastor is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph of the Plaintiff's Amended'Comp!aint and, therefore, said averments are denied. 29. (a)-(g) Denied as to Dr. Pastor, Dr. Benedict, Dr. Whitney, and WSAA. The averments of this paragraph and its sub-paragraphs of the Plaintiff's Amended Complaint recite medical and legal conclusions to which no response is required. Answering Defendants aver, however, that at all times and for all purposes relevant to their professional involvement in this matter, they acted appropriately and in a fashion commensurate with standards of anesthesiology care applicable under similar circumstances and they in no way negligently caused or negligently contributed to cause any injury or damage to Plaintiff. 30. (a)-(b) The averments of this paragraph and its subparagraphs of Plaintiff's Amended Complaint are not directed towards Dr. Pastor and, therefore, no response is required. 31. (a)-(b) Denied. The averments of this paragraph and its subparagraphs of Plaintiff's Amended Complaint recite medical and legal conclusions to which no response is required. It is, however, averred that at all times and for all purposes relevant to his professional involvement in this matter, Dr. Pastor acted appropriately and in a fashion commensurate with standards of anesthesiology care applicable under similar circumstances. 32. (a)-(g) The averments of this paragraph and its subparagraphs of Plaintiff's Amended Complaint are not directed towards Dr. Pastor and, therefore, no response is required. 33. (a)-(d) The averments of this paragraph and its subparagraphs of Plaintiff's Amended Complaint are not directed towards Dr. Pastor and, therefore, no response is required. - 6 - COUNT I WRONGFUL DEATH ACTION 34. Dr. Pastor incorporates herein by reference his answers to paragraphs 1 through 34 of the Plaintiff's Amended Complaint as if the same were set forth in their entirety. 35. No response is required. WHEREFORE, Defendants, James Pastor, M.D., and West Shore Anesthesia Associates, Ltd., demand judgment in their favor and against Plaintiff. COUNT II SURVIVAL ACTION 36. Dr. Pastor incorporates herein by reference his answers to paragraphs i through 36 of the Plaintiff's Amended Complaint as if the same were set forth in their entirety. 37. No response required. WHEREFORE, Defendants, James Pastor, M.D., and West Shore Anesthesia Associates, Ltd., demand judgment in their favor and against Plaintiff. NEW MATTER 38. Plaintiff's Amended Complaint, in whole or in part, fails to state a cause of action as against Dr. Pastor and WSAA cognizable under Pennsylvania law. 39. At all times and for all purposes relevant to Answering Defendants' involvement in the health care of Charles Kichman, Answering Defendants acted appropriately and in a fashion commensurate with standards of anesthesiology care applicable under similar circumstances. 40. Answering Defendants did not negligently cause or negligently contribute to cause any injury or damage to Plaintiff. 41. To the extent applicable, or to the extent that it may later become applicable, Answering Defendants plead the statute of limitations referable to personal injury actions in Pennsylvania to preserve this affirmative defense for the record. 42. To the extent that discovery reveals, Answering Defendants plead Plaintiff's contributory negligence and/or assumption of risk to preserve these affirmative defenses for the record. 43. To the extent that Plaintiff and/or Plaintiff' decedent has sustained any injury or damage as the function of any alleged negligence, which is specifically denied, any such injury or damage was the result of the acts or omissions of third persons other than Answering Defendants and for whom Answering Defendants are in no way responsible or liable. - 8 - 44. Answering Defendants hereby plead all rights and defenses available under Pennsylvania's Health Care Medical Malpractice Act, as amended. WHEREFORE, Defendants, James Pastor, M.D., and West Shore Anesthesia Associates, Ltd., demand judgment in their favor and against Plaintiff. ~. BADOWSKI Attorneys for Defendants, JAM~S PASTOR, M.D., ~ WEST SHORTM ANESTHESIA ASSOCIATES, LTD. - 9 - VERIFICATION I, JAMES PASTOR, M.D., individually and for and on behalf of WEST SHORE ANESTHESIA ASSOCIATES, LTD., have read the foregoing ANSWER AND NEW MATTER OF DEFENDANTS, JAMES PASTOR, M.D., AND WEST SHORE ANESTHESIA ASSOCIATES, LTD., TO PLAINTIFF'S COMPLAINT which had been drafted by my counsel. The factual statements contained therein are known by me and are true and correct to the best of my knowledge, information and belief. This statement and verification is made subject to the penalties of 18 Pa. C.S.A. Section 4904, relating to unsworn falsifications to authorities, which provides that, if I knowingly make false averments, I may be subject to criminal penalties Date: ANESTHESIA ASSOCIATES, LTD. CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing document on all parties or their counsel of record by placing the same in the United States mail at Camp Hill, Pennsylvania, first-class postage prepaid, on the /~ day of ~ , 2002, and addressed as Wayne R. Spivey, Esquire Paul Bucci, II, Esquire SHRAGER, SPIVEY & SACHS 32nd Floor, Two Commerce Square 2001 Market Street Philadelphia, PA 19103 (Counsel for Plaintiff) Joseph P. Hafer, Esquire THOMAS, THOMAS & HAFER 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (Counsel for Dr. Lonergan) Craig A. Stone, Esquire METTE, EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (Counsel for Holy Spirit Hospital) MARGOLIS EDELSTEIN Secr~ary Shrager, Spivey & Sachs By: Wayne R. Spivey, Esqulre/V. Paul Bucci, II, Esquire Identification Numbers: 31017/87394 32nd Floor, Two Commerce Square 2001 Market Street Philadelphia, Pennsylvania 19103 (215) 568-7771 JOAN A. KICHMAN, Individually and as the Executrix of the Estate of CHARLES C. KICHMAN, Dec'd Plaintiff VS. : JAMES PASTOR and : WEST SHORE ANESTHESIA : ASSOCIATES, LTD. and : ROBERT P. LONEKGAN and : LONEKGAN OKTHOPEDIGS and : HOLY SPIRIT HOSPITAL OF THE : SISTERS OF GHKISTIAN CHARITY : Defendants : : CUMBERLAND COUNTY : COURT OF COMMONPLRAS CIVIL DIVISION : No.: 02-2196 Civil PLAINTIFF'S RESPONSE TO NEW MATTER OF DEFENDANTS, JAMES PASTOR, M.D. AND WEST SHORE ANESTHESIA ASSOCIATES, LTD., TO AMENDED COMPLAINT Plaintiff, by her attorneys, Shrager, Spivey & Sachs, hereby responds to the New Matter of Defendants, James Pastor, M.d. And West Shore Anesthesia Associates, Ltd., as follows: 38 - 44. Each of the averments set forth in these paragraphs constitute conclusions of law, to which no response is required. By way of further response, to the extent any such averments are deemed to constitute factual allegations, same are denied and strict proof thereof, to the extent relevant, is demanded at the time of trial. WHEREFORE, Plaintiff demands damages of the defendants in a sum in excess of Fifty Thousand Dollars ($50,000.00), plus interests, costs of suit, and damages for delay. Shrager, Spivey & Sachs R. Spivey Attorney for Plaintiff -2- VERIFICATION I, Wayne R. Spivey, Esquire hereby states that he is counsel for the plaintiffs in the foregoing action and that the averments in the foregoing are true and correct to the best of his knowledge, information and belief. This Statement is made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. eR.S JOAN A. KICHMAN, Individually and as the Executrix of the Estate of CHARLES C. KICHMAN, Deceased, Plaintiff, JAMES PASTOR, WEST SHORE ANESTHESIA ASSOCIATES, LTD., ROBERT P. LONERGAN, LONERGAN ORTHOPEDICS and HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, Defendants. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL DIVISION No. 02-2196 JURY TRIAL DEMANDED As a prerequisite of a subpoena for documents and things pursuant to Rule 4009.22, Defendant certifies that: (1) a Notice of Intent to serve a Subpoena with a copy of the Subpoena attached thereto was sent to Plaintiff's counsel; (2) a copy of the Notice of Intent, including the proposed Subpoena, is attached to this Certificate; (3) Plaintiff's counsel has waived the twenty (20) days notice requirement to serve this Subpoena; and (4) the Subpoena which will be served is identical to the Subpoena which is attached to the Notice of Intent to serve the Subpoenas. Date: Attendant Robert P. Longerna, JOAN A. KICHMAN, Individually and as the Executrix of the Estate of CHARLES C. KICHMAN, Deceased, Plaintiff, JAMES PASTOR, WEST SHORE ANESTHESIA ASSOCIATES, LTD., ROBERT P. LONERGAN, LONERGAN ORTHOPEDICS and HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, Defendants. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL DIVISION No. 02-2196 JURY TRIAL DEMANDED TO: Plaintiff and Counsel for Parties of Record Defendant Robert P. Lonergan, M.D. intends to serve a Subpoena identical to the one attached to this Notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned objections to the subpoenas. If no objection is made, the subpoenas may be served. Date: THOMAS, THOMAS & HAFER, LLP JOSEPH~P. HAFER, ESQUIt~ -~ JOAN A. KICHMAN, Individually and as the Executrix of the Estate of CHARLES C. KICI-IMAN, Deceased, Plaintiff, JAMES PASTOR, WEST SHORE ANESTHESIA ASSOCIATES, LTD., ROBERT P. LONERGAN, LONERGAN ORTHOPEDICS and HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, Defendants. COURT OF COMMON PLEAS CUMBERLAND COUNTY : CIVIL DIVISION No. 02-2196 . JURY TRIAL DEMANDED SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Pinnacle Health at Harrisburg Hospital Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following documents or things: Complete copies of any and all medical records, reports, notes, studies, bills, incoming & outgoing correspondence, fqlme, labsf phone messages, summaries, etc. for any inpatient, outpatient, ER, clinic or office visit pertaining to Charles C. Kichman, tr., SSN: 186-28-5006; DOB: 4/18/35 at: Thomas, Thomas & Haler, LLP, 305 N. Front St., P.O. Box 999, Harrisburg, PA 17108- 0999. You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance, the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena, within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: ADDRESS: TELEPHONE: SUPREME COURT ID#: ATTORNEY FOR: Joseph P. Hafer, Esquire P.O. Box 999, Harrisburg, PA 17108-0999 (717) 441-7053 07186. Defendant Robert P. Lonergan, M.D. BY THE COURT: DATE: Seal of the Court Prothonotary/Clerk, Civil Division Deputy CERTIFICATE OF SERVICE I, Vicki A. Bolinger, an employee of the law offices of Thomas, Thomas & Hafer, LLP, do hereby certify that ! served a copy of the foregoing document by depositing the same in the United States mail, first class, postage prepaid, as follows: Wayne IL Spivey, Esquire V. Paul Bucci, II, Esquire Shrager, Spivey & Sachs 32na Floor, Two Commerce Square 2001 Market Street Philadelphia, PA 19103 Michael Badowski, Esquire Margolis Edelstein P.O. Box 932 Harrisburg, PA 17108-0932 Craig Stone, Esquire Mette, Evans & Woodside 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 Date: VICKI A. BOI.INGER (,_) CERTIFICATE OF SERVICE I, Vicki A. Bolinger, an employee of the law offices of Thomas, Thomas & Hafer, LLP, do hereby certify that I served a copy of the foregoing document by depositing the same in the United States mail first class, postage prepaid, as fOllows: V. Paul Bucci, II, Esquire Shrager, Spivey & Sachs 32nd Floor, Two Commerce Square 2001 Market Street Philadelphia, PA 19103 Michael Badowski, Esquire Margolis Edelstein P.O. Box 932 Harrisburg, PA 17108-0932 Steve Snyder, Esquire Mette, Evans & Woodside 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 Date: VICKI A. BOLINGER THOMAS, THOMAS & HAFER, LLP Joseph P. Haler, Esquire Court I.D. NO. 07186 305 North Front Street, P.O. Box 999 Harrisburg, PA 17108 (717) 255-7613 Attorneys for Defendants: Robert P. Lonergan, M.D. and Lonergan Orthopedics JOAN A. KICHMAN, Individually' and as the Executrix of the Estate of CHARLES C. KICHMAN, Deceased, Plaintiff JAMES PASTOR, WEST SHORE ANESTHESIA ASSOCIATES, LTD., ROBERT P. LONERGAN, LONERGAN ORTHOPEDICS and HOI,Y SP!RIT ,-~c, ~- ~ t~ ,, ~,~ q~c,-v..,e O1' CHRISTIAN CHARITY, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION No. 02-2196 JURY TRI,ScL DE1VEhNDED The undersigned, counsel for the parties in the above-captioned matter, hereby stipulate and agree, pursuant to Pa. R.C.E 229(b), to the dismissal of this action as to Defendant Lonergan Orthopedics only, with prejudice. The remaining parties remain as Defendants to the case. It is further stipulated that separate signature pages for cotmsel may be appropriately attached to the aforesaid Stipulation, and that the case caption to be amended to remove Defendant Lonergan Orthopedics. Date: ' LLP( ,,///7 By: __ //Court I.D. No. 07186 ,// Counsel for Defendants '/ Robert P. Lonergan, M.D., and Lonergan Orthopedics 238517-1 SHRAGER, SPIVEY & SACHS By: V. Paul Bucci, Esquire Cour~sel for Plaintiff 238517-1 MARGOLF,1 ED~LSTF~I~"~// By: !i!i~.//~~~w~,~ki!!~ir e Cou~lsel for Defi~ndants Jame~ Pastor, M.D., and West Shore, Anesthesia Associates 238517-1 Kichman v. Pastor, et mi. Stipulation to Dismiss Lonergan Orthopedics June 13, 2003 METTE, EVANS & WOODSIDE By:_~~ Steven Snyd{4, EsqUire Counsel for Defendant Holy c · · ~,plrlt Hospital 3O © 238517.1 THOMAS, THOMAS & HAFER, LLP Joseph P. Haler, Esquire Court I.D. No. 071~6 305 North Front S~eet, P.O. Box 999 Harrisburg, PA 17108 (717) 255-7613 JUl 2003 Attorneys for Defendants: Robert P. Lonergan, M.D. and Lonergan Orthopedics JOAN A. KICHMAN, Individually and as the Executrix of the Estate of CHARLES C. KICHMAN, Deceased, Plainh'ff JAMES PASTOR, WEST SHORE ANESTHESIA ASSOCIATES, LTD., ROBERT P. LONERGAN, LONERGAN ORTHOPEDICS and HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION No. 02-2196 JURY TRIAL DEMANDED ORDER AND NOW, this _ day o~ 2003, upon consideration of the within Stipulation to Discontinue as to Less than All Defendants, it is hereby ORDERED and DECREED that Defendant Lonergan Orthopedics only, is hereby dismissed from this action, with prejudice, pursuant to the Stipulation to Discontinu~e as t~o_~Less Than All Defendants, attached hereto as Exhibit A. ,~/~ BY T~E COUld. / PP~kECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and suk~nitted in duplicate) TO THE PROTHONOTARY OF CL~4BERLAbD COUNTY Please list the ( Check one) ( x ( CAPTION OF CASE (entire caption must be stated in full) Joan Kichman, Individually and as the Executrix of the Estate of Charles C. Kichman, Dec'd following case: for JURY trial at the next term of civil court. for trial without a jury. (check one) (x) Civil Action - Law ( ) Appe~al from Arbitration (Plaintiff) ( ) (other) James Pastor, West Shore Anesthesia Associates, LTD., Robert P. Lonergan, and Holy Spirit Hospital of the Sisters of Christian Charity (Defendant) vs. The trial list will be called on Dec. 9, 200: and Trials commence on January 12, 2004 Pretrials will be held on December 17, 2003 (Briefs are due 5 days before pretrials.) (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214.1.) No. 02-2196 Civil 19 Indicate the atto rneywho will try case for the partywho files this praecipe: V. Paul Bucci, II Indicate trial counsel for other parties if known: Michael M. Badowski (Pastor & West Shore), Steven D. Snyder (Holy Spirit) and Joseph P. Hafer (Lonergan) This case is ready for trial. Dete: September 18. 2003 Attorney for: Joan Kichman. Plaintiff MICHAEL M. BADOWSKI, ESQUIRE Pa. Supreme Court I.D. No. 32646 STEPHEN L. BA~KO, JR., ESQUIRE Pa. Supreme Court I.D. NO. 41727 MARGOLIS EDELSTEIN 3510 Trindle Road Camp Hill, Pennsylvania 17011 Telephone= Fax= E-Mail: [717] 975~8114 [717] 975-8124 mbadowski~margolisedelstein.com sbanko~margolisedelstein.com Attorneys for Defendants, James Pastor, M.D. and West Shore Anesthesia Associates, Ltd. JOAN KICHMAN, INDIVIDUALLY AND AS THE EXECUTRIX OF THE ESTATE OF CHARLES KICHMAN, DECEASED, PLAINTIFF, VS. JAMES PASTOR, M.D., WEST SHORE ANESTHESIA ASSOCIATES; LTD., ROBERT P. LONERGAN, M.D., : HOLY SPIRIT HOSPITAL OF THE : SISTERS OF CHRISTIAN CHARITY, : DEFENDANTS. : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DOCKET NO. 02-2196-CIVIL JURY TRIAL DEMA/qDED MOTION OF DEFENDANTS, JAMES PASTOR, M.D. AND WEST SHORE ANESTHESIA ASSOCIATES, LTD., TO STRIKE PRAECIPE FOR TRIAL LISTING AND FOR SCHEDULING OF A STATUS CONFERENCE filed an Amended 1. Plaintiff filed an original Complaint in the above- captioned action on or about May 3, 2002. 2. On or about August 15, 2002, Plaintiff Complaint. However, the Amended Complaint counsel for Defendants, James Pastor, M.D. West Shore Anesthesia Associates, Ltd. (~WSAA"), hereinafter referred to as Defendants. A copy of a letter dated August 2002, serving the Amended Complaint is attached hereto, incorporated herein by reference and marked as Exhibit A. was not served upon (~Dr. Pastor") and 29, 3. Ail parties have filed appropriate responses to the Amended Complaint and Plaintiff has filed replies to New Matter. 4. Accordingly, the pleadings in this case closed slightly more than one year prior to the filing of this Motion and approximately one year before Plaintiff filed a Praecipe for listing this case for trial during the January 12, 2004, term. A copy of said Praecipe for Listing Case for Trial is attached hereto, incorporated herein by reference and marked as Exhibit B. 5. In accordance with the Praecipe for listing the case for trial, the trial list will be called on December 9, 2003. 6. As of the date the list is called, Plaintiff, pursuant to Local Rule of Court No. 213.2 must certify that discovery is closed and that the case is in all respects ready for trial. 7. It is submitted that Plaintiff cannot so certify this case ready for trial in that discovery is not complete and, accordingly, this case is not in all respects ready for trial. 8. In fact, the deposition of Plaintiff is not scheduled to occur until December 11, 2003. A copy of the Notice of Deposition is attached hereto, made a part hereof and marked as Exhibit C. 9. Until Plaintiff's deposition occurs, Defendants cannot determine whether they will require any additional discovery and, certainly, final expert review cannot be had until after that time. -2- 10. Moreover, on July 7, 2003, Plaintiff served Answers to Defendants' Interrogatories and a written response to Defendants' Request for Production of Documents. A copy of the letter from the office'of Plaintiff's counsel dated July 7, 2003, and Plaintiff's answers to the aforesaid discovery requests are attached hereto, incorporated herein by reference and marked as Exhibit D. 11. It is submitted that counsel for Plaintiff recognized that as of July 3, 2003, discovery was not complete and that the case was not in all respects ready for trial. 12. In answer to Interrogatory No. 14 (page 4 of Plaintiff's answers), Plaintiff objected to an Interrogatory which required her to state her contentions as to liability of each Defendant as well as the specific facts to support such claim. In response to this Interrogatory, Plaintiff objected stating; ~'Due to limited discovery, this Interrogatory is premature at this time." 13. Similarly, in Interrogatory No. 22, Plaintiff was asked to provide information concerning treatment rendered by various individuals to which Plaintiff responded; ~Discovery is ongoing. Plaintiff will supply this information as discovery continues." 14. In Interrogatory No. 25, Plaintiff was asked to specify the damages claimed by itemizing lost earnings, loss of earning capacity, medical expenses and all other elements of special damage, to which she responded; ~To be provided, in a timely -3- manner, prior to trial." 15. In providing a written response to Defendants' Request for Production of Documents, Plaintiff was asked to provide the curriculum vitae for each and every expert that will be called to testify at the time of trial. Although Plaintiff, under cover letter dated July 7, 2003, provided some expert reports, she responded to the aforesaid Request for Production of Documents as follows; '~Plaintiff has not yet determined the identity of expert witnesses to testify at trial. Once such experts have been selected, expert reports and curriculum vitae shall be produced in a timely manner prior to trial." 16. Finally, in response to Request for Production of Documents No. 8, Plaintiff was asked to provide all demonstrative evidence which she intends to use or introduce at the time of trial, to which she responded; "To be supplied in a timely manner prior to trial.H 17. At no time since July 7, 2003, has Plaintiff provided any of the additional information in response to the discovery requests set forth above and in accordance with her answers thereto. 18. It is submitted, therefore, that discovery in this case is not closed and that the case is not in all respects ready for trial. 19. This is the first Motion for a Continuance. 20. Defendants believe and, therefore, aver that the better course is to set this matter for a scheduling conference so that appropriate discovery deadlines may be set and that the case can be set for trial at a time convenient to all counsel and this Honorable Court. 21. On October 14, 2003, the undersigned counsel for moving Defendants requested during a telephone conversation that Plaintiff's counsel agree to remove this matter from the January 2004 trial list and counsel for Plaintiffs refused. 22. Accordingly, moving Defendants have had no other alternative but to file this instant Motion to strike the case from the trial list and to schedule a status conference. WHEREFORE, Defendants, James Pastor, M.D. and West Shore Anesthesia Associates, Ltd., pray this Honorable Court enter an Order striking Plaintiff's Praecipe to list this case for trial during the civil term of court to commence January 12, 2004, and scheduling this matter for a Status Conference. M EL M B~OWSKI Attorneys for Defendants, J~ES PASTOR, M.D., ~ WEST SHORE ~ESTHESIA ASSOCIATES, LTD. I HEREBY CERTIFY the foregoing on all counsel of United States mail at Camp Hill, postage prepaid, on the /~ addressed as follows: CERTIFICATE OF SERVICE that I served a true and correct copy of record by placing the same in the Pennsylvania, first-class day of ~~_~ , 2003, and Wayne R. Spivey, Esquire Paul Bucci, II, Esquire SHP~AGER, SPIVEY & SACHS 32na Floor, Two Commerce Square 2001 Market Street Philadelphia, PA 19103 (Counsel for Plaintiff) Joseph P. Hafer, Esquire Hugh P. O'Neill, III, Esquire THOMAS, THOMAS & HAFER 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (Counsel for Dr. Lonergan) Steven D. Snyder, Esquire METTE, EVANS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (Counsel for Holy Spirit Hospital) MARGOLI S EDELSTEIN Secretary Shrager Spivey Sachs ATTORNEYS AT [AW August 29, 2002 Iaa Facsimile only (717)975.8124 Shaun 3. Mumford, Esquire Margohs Edcht~in 3510 Trindle Road Camp Hill PA 17011 Re: Estate of Kh:hman ~ Pastor, et al Dear Shaan: Here is the Amended Complaint which was recently filed. Sorry for thc delay. Should you have any questions, please do not hesitate to contact me at your earliest COnVCBi~!CC. Sincerely, V. Paul Bucci, lq VPBH PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CLIMBE~ COUNTY Please list the following case: ( Check one ) ( x ) for JURY trial at the next term of civil court. ( ) for trial without a jury. CAPTION OF CASE (entire caption must be stated in f,,ll) (check one) Joan Kichman, Individually and as the Execntrix (X) Civil Action - Law of the Estate of Charles C. Kichman, Dec'd ( ) Appeal from Arbitration (Plaintiff) vs. James Pastor, West Shore Anesthesia Associates, LTD., Robert P. Lonergan,~ and Holy Spirit Hospital of the Sisters of Christian Charity ( ) (other) The trial list w~]l be called on Dec. 9, 2003 and Trials com~e~lce on January 12, 2004 vs. ( Defendant ) Pretrials will be held on December 17, 2003 (Briefs are due 5 days before pretrials. ) (The party listing this case for trial shall provide forthwith a copy of the praecipe to ail counsel, p~rsuant to local Rule 214.1.) No. 02-2196 Civil 19 Indicate the attorney whowill try case for the party who files th-is praecipe: V. Paul Bucci, II Indicate trial counsel for other parties if known': Michael M. Badowski (Pastor & West Shore), Steven D. Snyder (Holy Spirit) and Joseph P. Hafer (Lonergan) This case is ready for tri~l. Date: Seotember 18. 2003 -Signed:- Attorney for: Joan Kichman. Plaintiff MICHAEL M. BADOWSKI, ESQUIRE Pa. Supreme Court I.D. No. 32646 STEPHEN L. BANKO, JR., ESQUIRE Pa. Supreme Court I.D. No. 41727 MARGOLIS EDELSTEIN 3510 Trindle Road Camp Hill, Pennsylvania 17011 Telephone Fax: E-Mail: [717] 975-8114 [717] 975-8124 mb&dowski~rgolisedelstein.¢om sbanko~margolisedelstein.com Attorneys for Defendants, James Pastor, M.D. and West Shore ~tnesthesia Associates, Ltd. JOAN KICHMAN, INDIVIDUALLY AND AS THE EXECUTRIX OF THE ESTATE OF CHARLES KICHMAN, DECEASED, PLAINTIFF, VS. : JAMES PASTOR, M.D., : WEST SHORE ANESTHESIA ASSOCIATES,: LTD., ROBERT P. LONERGAN, M.D., : HOLY SPIRIT HOSPITAL OF THE : SISTERS OF CHRISTIAN CHARITY, : DEFENDANTS. : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DOCKET NO. 02-2196-CIVIL JURY TRIAL DEMANDED NOTICE OF DEPOSITION PLEASE TAKE NOTICE that pursuant to Pa. R.C.P. No. 4407.1, the Defendant will take the deposition of PLAINTIFF; JOAN KICHF~kN, in the above-captioned action, upon oral examination, for the purpose of discovery or for use at trial or for both purposes, before a person authorized to render an oath, at the offices of Margolis Edelstein, 3510 Trindle Road, Csanp Hill, Pennsylvania 17011, at 11:00 a.m. on Thursday, December 11, 2003, on all matters not privile~e~-which'~e relevant and material to the issues and subject matter involved in the above-captioned action and that the above-named is required to appear at the aforesaid time and place and submit to examination under oath. The above-named is requested to bring all records, letters, documents, memoranda, photographs, or any other matter or thing not privileged which are relevant and material to the issues and subject matter involved in the above-captioned action. The court reporting services to be provided by: CAPITAL COURT REPORTING 1431 Lombard Street Philadelphia, PA 19146 Telephone: [800] 760-2626 MICHAEL Mf~ADOWSKI Attorneys for Defendants, JA~S PASTOR, M.D., A~D W~ST S~ORE A/~EST~ESIA ASSOCIATES, LTD. CERTIFICATE OF SERVICE I HEREBY CERTIFY that I served a true and correct copy of the foregoing on all counsel of record by placing the same in the United States mail at Camp Hill, postage prepaid, on the /,~day of addressed as follows: Pennsylvania, first-class ~~ ,2003, and Wayne R. Spivey, Esquire 'Paul Bucci, II, Esquire SHRAGER, SPIVEY & SACHS 32n~ Floor, Two Commerce 2001 Market Street Philadelphia, PA 19103 (Counsel for Plaintiff) Square Joseph P. Hafer, Esquire Hugh P. O'Neill, III, Esquire THOMAS, THOMAS & HAFER 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 (Counsel for Dr. Lonergan) Steven D. Snyder, Esquire METTE, EV/~NS & WOODSIDE 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (Counsel for Holy Spirit Hospital) MARGOLI S EDELSTEIN By:~...-- ~Sec~tary ' DAVID S. SHRAGER WAYNE R, SPIVEY *ROBERT L. SACHS, '~V. PAUL BUCCI, H *also member New Jersey Bar palso member West Virginia Bar Shrager Spivey ._ Sachs J A1-roRN£YS AT LAW TWO COMMERCE SQUARE 32nd FLOOR 2001 MARKET STREET PHILADELPHIA, PA 19103 (215) 568-7771 FAX (215) 568-7495 website: www.zhragerlaw.com general mailbox: info@shragerlaw, com writer's direct e-mail: juiy 7, oo3 Joseph P. Haler, Esquire Thomas, Thomas & Haler, LLP 305 No. Front Street, 6~ Floor P.O. Box 999 Harrisburg, PA 17108 Michael M. Badowski, Esquire Margolis Edelstein 3510 Trindie Road Camp Hill, PA 17011 RE: Estate of Kichman v. Pastor, et al Dear Counsel: Steven D. Snyder, Esquire Metre, Evans & Woodside 3401 No. Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 Enclosed please fmd the following: PlaintiWs Answers to Interrogatories of Defendants, James Past6r and West Shore Anesthesia Associates, Directed to Be Answered by Plaintiff- First Set; and PlaintiWs Response to Request of Defendants, James Pastor and West Shore Anesthesia Associates, for Production of Documents Directed to Plaintiff-First Request I request that all parties accept these discovery responses in lieu of answering multiple sets of discovery. If you are in need of further documentation, please advise. /cdh Enclosure (~erine D. Houck, Legal Assistant Shrager Spivey & Sachs By: Wayne R. Splvey, Esquire/V. Faul Bucci, II, Esquire Identification Numbers: 31017/87394 32nd Floor, Two Commerce Square 2001 Market Street Philadelphia, Pennsylvania 19103 (215) 568-7771 ~OAN A. KICH2VIAN, Individually and as the : Executrix of the Estate of : CHARLES C. KICHMAN, Dec'd : Plaintiff : VS. : lAMES PASTOR and : WEST SHOI~E ANESTHESIA : ASSOCIATES, LTD. and : ROBERT P. LONERGAN and : LONERGAN OKTHOPEDICS and : HOLY SPIRIT HOSPITAL OF THE : SISTERS OF CHRISTIAN CHARITY : Defendants : CUMBERLAND COUNTY COURT OF COMMON PLF~&S CI-F~ DMSION No.: 02-2196 Civil PLAINTIFF'S ANSWERS TO INTERROGATORIES OF DEFENDANTS, JAMES PASTOR AND WEST SHO1LE ANESTHESIA ASSOCIATES, DIRECTED TO BE ANSWERED By PLAINTIFF - FIRST SET Please identify yourself and state your address, date and place of birth, marital status, Social Security Number and relation ship to the decedent. Joan A. Kichman, 353 Old Slage Road, Lewisberry, PA 17339; date of birth: 05/11/38, Stubenvilla, Ohio; widow; 192-30-2203; widow of Charles C. Kichman, Jr. Please identify the decedent by stating his/her full name, any other names used by decedent or by which decedent was known, date and place of birth, time, date and place of death, marital status and Social Security Number. Charles C. Kichman, Jr.; date of birth: 4/18/35, Harrisburg, PA; Death: Sunday, May 28, 2000 at 6:40 p.m. at Holy Spirit Hospital in Camp Hill, PA; Married for 42 years to Joan A. Kichman; Social Security No.: 186-28-5006. If decedent was a minor at the time of death, please state the general background of the decedent's parents, including their names, addresses, dates and places of birth, educational background, type of work they perform, names and addresses of their employers and the names, addresses and ages of their children. Not applicable. If the decedent was married, state the spouse's name and address and whether decedent and spouse were living together at the time of decedent's death, and if not so living, state date of separation and circumstances under which the separation took place. Joan A. Kichman, 355 Old Stage Road, Lewisberry, PA 17339. Married for 42 years with no separations. State the name and address of each person entitled to share as an heir in decedent's estate and if different, every person entitled to share in a claim made under the Wrongful Death Statute. As stated in plainti~'s Complaint, Mr. Kichman was survived by his wife, Joan A. Kichman, and three (3) adult children: Matthew C. Kichman, Michael W. Kichman and Kandis Marie Heath. Lfthe decedent suffered or was examined for any injury, illness, disease or abnormality within the ten years prior to the occurrence upon which this action is based, please specify the nature of each such injury, illness, disease or abnormality, when, where and how each such injury, illness, disease or abnormality was sustained, and the names and addresses of all medical personnel and medical care facilities having any connection with the treatment of each such injury, illness, disease or -2- abnormality, the nature of such treatment and thc date upon which such treatment was rendered. See decedent~s medical records. If the decedent suffered or was examined for any injury, illness, disease or abnormality of any kind at any time prior to the treatment upon which this action is based involving any part or function of the body claimed to have been injured in the medical treatment which constitutes the basis of this action, please specify the nature of each such injury, illness, disease or abnormality, when, where and how each such injury, illness, disease or abnormal/ty was sustained, and the names and addresses of all medical personnel and all medical facilities in any way connected with the treatment of each such injury, illness, disease or abnormality, the nature of such treatment and each date upon which such treatment was rendered. See decedent's medical records. If the decedent or someone on behalf of the decedent had ever asserted a claim or filed suit for any purpose including, without limitation, a claim for injury, damage, property damage, or disability, workmen's compensation or occupational disease to obtain benefits, please identify the claim or suit, the nature of the injuries alleged in each such suit, the period during which you were disabled, and, if said suit has been terminated, state the results of the trial or setdement, including the amounts of each recovery or settlement, if any. In 1965 Mr. Kichman received disab'dity payments for one month period following a car accident. State the name and address of the decedent's family physician at the time of the transaction or occurrence upon which this action is based, the approximate number of visits made in the year preceding said treatment and the reason for each such visit. Dr. I. Stephen Snoke, Snoke Family Practice, 1800 Carlisle Road, Camp PA 17011. Mr. Kichman would see Dr. Snoke approximately every 3 months. See medical records of Dr. Snoke for additional information. -3- 10. Il. Please state in detail what injuries you claim the decedent sustained as a result of the transaction or occurrences upon which this action is based, the dates confined to bed by the injuries, dates confined to the home by the injuries. See plaintiff's Complaint and medical records. Please state the names and addresses of all medical facilities in which the decedent had been confined or through which the decedent received outpatient treatment as a result of the injuries, the dates of each such confinement or treatment, the general nature of the treatment in each, the charges for same, and the amount that has been paid. See medical records. 12. Please state the names and addresses of all medical personnel who rendered treatment or service to the decedent became of the injuries referred to in your answers to Interrogatories Nos. 6 and 7, the dates of such transaction or service, whether such transaction or service was rendered at home, in a medical care ficility, or elsewhere, the genera~ nature of the treatment by each, the charges for such treatment by each, and the amount that has been paid as to each. See medical records. 13. Identify all medical personnel who were consulted by the decedent or anyone on behalf of the decedent in connection with the treatment upon which this action is based or the injuries you claim to have resulted from said treatment and state, when, where and for what purpose each such person was consulted. See medical records. State your contentions as to the liability of each defendant as well as the specific facts known to you upon which you base each claim of negligence or malpractice alleged in this action and upon which each specific paragraph or subparagraph which avers negligence or lack of informed consent in PlaintifPs Complaint. Objection. Due to limited discovery, this interrogatory is premature at this time. Furthermore, the answer to this interrogatory is likely to be the subject of expert analysis and 9pinio_n. _Each specific act and/or omission of the defendants will be provided in accordance with the Court's Scheduling Order, the applicable Pennsylvania Rules of Civil Procedure and/or the Philadelphia 15. County Court Rules. However, without waiver of said objections and based on the information currently available, see plaintiff's Complaint and the expert reports of Donald M. McCarren, D.O. and Mark D. Johnson, M.D. If you have received any medical, hospital, or x-ray repons from any medical facility or medical personnel concerning the injuries alleged to have been caused by the treatment upon which this action is based, please identify such report, where and when each report was received, the person from whom each report was received, the person who has custody or possession of each report or any copy thereof, and whether each report was written or oral. None other than medical records. I6. 17. 18. Please identify all individ~alg, insurance adjusters, attorneys, parties or others who have conducted any investigation or review of medical or legal literature with respect to the issues involved in this case and whether you will produce or have produced at a mutually convenient place and time the results of the investigation (without disclosing the mental impressions of the party's attorney or his conclusions, opinions, memoranda, notes or summary, legal research or legal theories or with respect to the representative or the party without disclosing his mental impressions, conclusions or opinions respecting the value or merit of the claim or defense or respecting strategy or tactics). Objection. Plaintiff objects to this interrogatory to the extent that it seeks information which is protected t~om discovery by the attorney-client privilege and work product doctrine, ]Pa. R.C.¥. 4003.3 or which are otherwise beyond the scope of that deemed discoverable pursuant to Pa.R.C.P. 4003.5. If you have obtained from any person or persons any oral or written statements or documents concerning the treatment upon which this action is based or if the decedent or anyone acting on behalf of the decedent have given any such statements or documents to anyone, please specify the identity of each such person, when, where, and by whom each such statement or document was obtained or made, whether each such statement or document was oral or written and the identity of the person who has custody or possession of each such statement or document. None. If the injuries you allege ~n this*ac~io~a were ~aused in whole or in part by sickness, disease, abnormality or injury other than the injuries you claim resulted from the -5- treatment upon which this action is based, specify the nature of each such sic/mess, disease, abnormality or injury and how each affected you, whether there are any medical, x-ray, hospital or other reports which indicate the nature of each such sickness, disease, abnormality or injury and how each affected you and, if so, state where and when each such report was made, the identity of the person who made each such report, each person who has custody or possession of each such report and whether you have been furnished any such information in any way other than by the documents referred to in this Interrogatory and, if so, how, when, where and by whom. See Plaintiffs Complaint and medical records. 19. Describe any conversations, whether held in person or using any device of communication, between or among the defendant and any other person, including the decedent, pertaining to the subject matter of this action by stating the date, time and place of such conversation and exactly what was said by each person privy to the conversation ffyou can, and if you cannot, summarize as accurately as you can such conversations. Plaintiff had several conversations with the defendant doctors regarding her husband care and treatment. Defendants are entitled to inquire into this subject matter daring the plainti~s deposition. 20. If you or anyone within your knowledge are in possession of any photographs, drawings, sketches, plans, documents or blueprints relating to the subject matter of tiffs action, including, but not limited to, the area involved in the treatment upon which this action is based, the locale or surrounding area of this site of said treatment, the injuries you ailege in this action, or any other matter or thing involved in the treatment, please state the date each such photograph, drawing, sketch, plan, document, or blueprint was taken or prepared, the name and address of the parry taking or making it, where it was taken or made, the object[s] or subject[s] or the particular site or view it represents, its present whereabouts and the name and address of the person who has possession or custody of each or any copy of print thereof. None in plaintifPs possession. 21. Please identify al/persom, who_you know or believe wimessed all Or any part of the treatment upon which this action is based, were present at or near or within the sight or hearing of the scene of the treatment upon which this action is based and/or has -6- any knowledge of the injuries you claim to have resulted from said treatment or the cause thereof. Plaintiff, PlaintifFs family members, Defendants and Defendants' agents, servants and/or employees. Plaintiff reserves the right to supplement this response. 22. With respect to each of the persons named in your answer to the preceding Interrogatory, state his exact location at the time of said treatment or other relevant any knowledge of the injuries you claim to have resulted from said treatment or the cause thereof. 22. Plaintiff, Plaintit5% family members, Defendants and Defendants' agents, servants and/or employees. Plaintiff reserves the right to supplement this response. With respect to each of the persons named in your answer to the preceding Interrogatory, state his exact location at the time of said treatment or other relevant time and the activity in which he was engaged at the time of said treatment or other relevant time. Discovery is ongoing. Plaintiff will supply this information as discovery contillues. 23. Please identify any and all fact wimesses who have any knowledge whatsoever pertaining to the issues involved in the instant case, as well as any and all potential witnesses or individuals whom you may call at trial and who have not heretofore been identified, including the name, place and manner of contact between the potential witness and the parties, the substance of facts to which the witness could testify if called by any parry, the method of discovery of the potential witnesses, the purpose of the witness' testimony (if applicable) and whether any statement or summary or written memoranda has been taken with respect to the potential witness and if so, who has possession of that statement or document at the present t/me. (Please attach a copy of the same without the necessity of filing a formal request for production of documents). Plaintiff has not yet determined the identity of witnesses to testify at trial. Once such witnesses have been selected, plai~tlff will supplement this response. Identify all other witnesses other than those identified in the foregoing interrogatories who you will call to testify at trial and with respect to each such witness, summarize all of the testimony they will offer. Plaintiff has not yet determined the identity of witnesses to testify at trial, Once such witnesses have been selected, plaintiffwill supplement this response. -7- 25. 26. 27. Please specify the damages you claim by itemizing lost earnings, loss of earning capacity, all medical expenses and all of the expenses incurred for rehabilitation and custodial care, other future losses and any other elements of special damage. To be provided, in a timely manner, prior to trial. If you or any other person entitled to make a claim under the Wrongful Death Statute sustained any financial loss as a result of the transaction or occurrences upon which this action is based, other than those covered by the preceding interrogatories, please specify the nature, dates and amounts of such losses; and if claim is made for nursing service or household help, identify each such person employed, the period of employment, the amounts of the charges for the services, the amounts actually paid and whether you have retained any bills, canceled checks, or copies thereof, reflecting such charges. Loss of pension benefits - $&,000.00 per month Income fi:om part-time job - $17,000.00 per year Pension fi:om pm-time job - $750.00 per month Loss of health benefits Had to sell family farm and home (34 acres of land) If you have no claim for loss of earnings or earning power, do not answer this or the following four interrogatories and merely state "no claim." If, during the five years preceding the transaction or occurrence which is the subject matter oft_his action, the decedent was employed by another, please state, for the five years preceding the treatment upon which this action is based, the name and address of each employer, decedent's job title or classification for each, the dates of decedent's employment with each employer, the exact amount of salary or wages received from each employer during each calendar year, the exact weekly, monthly or annual wage or rate of pay received from each employe[, and the exact weekly, monthly or annual wage or rate of pay being received from decedent's employer at the time of said treatment. 28. See Answer to Interrogatory No. 26, above. If, during the five years preceding the treatment upon which this action is based, the decedent engaged in a business as a partner w!th others, identify each of the other partners or assodates, the name and address of the partnership, the type of business engaged in by the partnership, the dates dur'mg which such partnership or -8- 29. 30. association operated, and the exact amount of income and other benefits distributed to decedent from the partnership for each of the five years, stating specifically the income during each year and the amount received during the last calendar year of said treatment up to the time thereof. Not applicable. If, during the five years preceding the treatment, surgery or examination upon which this action is based, the decedent was self-employed, identify the business, the nature of the business, and the decedent's exact income, gross and net, from the business for each of the five years stating specifically the income during each year and the income earned during the last calendar year of said treatment up to the time thereof. Not applicable. For the five years prior to the occurrences which constitute the basis for this action and for each of the years since that date, state the name in which the decedent's federal income tax return was fried, the decedent's gross income, adjusted taxable net income, and for each such year, the aggregate gross income stated on W-2 forms attached to the decedent's federal income tax return; if the decedent did not file a federal income tax return, supply the requested information as contained on the decedent's state and local income tax return. Charles C. Kichman, Jr. & Joan A. Kichman. See Federal Income tax records attached hereto. 31. 32. Identify any insurance company, association, exchange or benefit society or groups which have paid any health, sickness, accident, medical, disability or life insurance benefits arising out of the occurrences which form the basis of this action, the amount of such payments and the nature and extent of any subrogation interest claimed or asserted. Prudential Insurance Company. If your claim in this action is based in whole or in part upon expert opinion, please identify each and every expert you expect to call at trial, his profession or occupation, the subject matter upon which the expert will testify, the substance of the facts and opinions to which the expert w.'fll te{rify, a summary of the grounds for each opinion of the expert, the date upon which you first contacted the expert, the author, rifle, date, and publisher or any article, text, part of a text, treatise, paper, speech, or any -9- other source of medical information upon which the expert will rely in expressing his opinion and identify all claims or actions in which such person has served as an expert wimess. See expert reports and curriculum vita o£Donald M. McCarren, D.O. and Mark D. Johnson, M.D. 33. For each expert identified in thc previous interrogatory, please state the expert's age, present hospital affiliations and employment, prior educational background, the titles and date of publication of any article, text, part of a text, treatise, paper or speech authored by the expert or to which the expert contributed, and the number of patients which the expert has diagnosed and/or treated for the same or similar injury, illness, disease or abnormality which forms the basis of this action within the past five years. See expert reports and curriculum vita of Donald M. McCarren, D.O. and Mark D. Johnson, M.D. Mectical Payment Interrogatories: 34. Please provide the following information relating to Plaintifl=s medical bills (attach copies of the actual medical bills): (a) Name of health care provider; (b) Date(s) of service; (c) Summary of services rendered; (d) Amounts billed; (e) Amounts paid to each health care provider by third party payors, including plainti~s medical insurance carrier(s); (f) Amounts paid out ofplaintitPs pocket to each medical care provider; and (g) Amounts paid by Medicare, Medicaid, Public Welfare Medical Assistance, or any other public source. The requested information will be supplied in a timely manner, prior to trial. -10- 35. Please identify any Department of Public Welfare Medical Assistance liens, Medicare/Medicaid hens, liens from any pubhc source or any other applicable liens. No subrogation claims have been asserted to date. Shrager, Spivey & Sachs By: V. Paul Bucci, II, Esquire Attorney for Plaintkff -ll- VERIFICATION I, )'OAN A. KICHMAN, hereby states that she is the plaindffin the foregoing action and that the foregoing Responses to Interrogatories are true and correct to the best of her knowledge, information and belief. The language of said Responses are that of counsel and of plaintiff. Plaintiff has read the Responses and to the extent that it is based upon information which she has given to her counsel, it is tree and correct to the best of her knowledge, information and belief. To the extent that the language of the Interrogatories is that of counsel, she has relied upon counsel in maldng dais Verification. This Statement is made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unswom falsification to authorities. Shrager Spivey & Sachs By: Wayne R. Spivey, Esquire/V. Paul Bucci, II, Esquire Identification Numbers: 31017/87394 32nd Floor, Two Commerce Square 2001 Market Street Philadelphia, Pennsylvania 19103 (215) 568-7771 JOAN A. KICHMAN, Individually and as the : Executrix of the Estate of : CHARLES C. KICHMAN, Dec'd : Plaintiff : VS. : )'AMES PASTOR and : WEST SHORE ANESTHESIA : ASSOCIATES, LTD. and : ROBERT P. LONERGAN and : LONERGAN ORTHOPEDICS and : HOLY SPIRIT HOSPITAL OF THE : SISTERS OF CHRISTI. AN CHARITY : Defendants : CUMBERLAND COUNTY COURT OF COMMON PL~,AS CIVIL DMSION No.: 02-2196 Civil PLAINTIFF'S RESPONSE TO REQUEST OF DEFENDANTS, JAMES PASTOR AND WEST SHORE ANESTHESIA ASSOCIATES, FOR PRODUCTION OF DOCUMENTS DIRECTED TO PLAINTIFF -- FIRST REQUEST 1. The entire contents of any investigation fie or fries and any and all documents in Plaintiffs possession which support or relate to the allegations of Plaintiffs Complaint (excluding the mental impressions of Plaintiffs attorney or his conclusions, opinions, memoranda, notes or summaries, legal research or legal theories, and excluding the mental impressions, conclusions or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics of a representative of Plaintiff, other than his attorney). None other than that protected by the attorney-client privilege and the attorney work-product doctrine. 2. Any and all statements concerning this action or its subject matter made by a party or its agents, servants or employees, or by a witness, as defined by Pa. R.C.P. No. 4003.4. ~one. 3. Any and all documents cor~rnlning the names and home and business ad&esses of all individml~ contacted as potential wimesses. Plaintiff objects to this request to the extent it seeks information pertaining to individuals consulted as potential witnesses, but will not testify at trial. Such information is not discoverable, pursuant to the Pennsylvania Rules of Civil Procedure. 4. Reports of any and all experts who w'fll testify at trial including any and all "prdirninary'~ reports, and all documents and records reviewed by each expert including all correspondence or memoranda. Plaintiff has not yet determined the identity of expert witnesses to testify at trial. Once such experts have been selected, expert reports and curriculm vitae shall be produced in a timely manner, prior to trial. 5. The curriculum vitae of each and every expert that w'dl be called to testify at trial. Plaintiff has not yet determined the identity of expert witnesses to testify at trial. Once such experts have been selected, expert reports and curriculum vitae shall be produced in a timely manner, prior to trial. 6. Any and all medical records, autopsy reports, physician's reports and bills, hospital records or abstracts of same which relate in any way to the injuries allegedly sustained by Plaintiff. See medical records which are in defendants' possession. -2- 7. Copies of your federal and state income tax returns for the five years immediately preceding the events giving rise to this action ~md for each year subsequent thereto and all corresponding W-2 forms. See tax records attached hereto. 8. All documents or other demonstrative evidence which Plaintiff intends to introduce or use at trial. To be supplied in a timely manner prior to trial. 9. All documents identified, described, specified or referenced in Plaintiffs .responses to Defendant's Interrogatories -- First Set served upon Plaintiff simultaneously With this Request for Production of Documents. See tax records attached hereto. 8hrager, Spivey & Sachs By: Wayne 1K. Spivey, Esquire Attorney for Plaintiff -3- Charles C Ktchman, Jr &iOan A Ktchman Klchman 355 Old Stage Road Lewtsberry, PA 17339 2000 U,S. INDIVIDUAL INCOME TAX RETURN SUMMARY Adjusted Gross Income $ 53,470 Taxable Income S 30,570 Total Tax $ 4,586 Tota! Payments $ 4,827 Refurd $ 241 Effective tax Rate 15.00 % INSTRUCTIONS FOR FILING YOUR RETURN ELECTRONICALLY If you file elect'onically, make sure to follow the Electronic Flling Instructions to complete your tax return. Come back to TurboTax in 24 to 48 hours to check the status of your return. TurboTax ~ill let you know if your return has been accepted or rejected by the I{S. If the IRS accepts your tax return, TurboTax will walk you through the final steps of electronic filing, It may involve printing and mailing some electrooic filing forms. (DO NOT mail a printed copy of your tax return to the IRS. 'they already received an electronic copy of your tax return,) If your return is rejected due to an error, you have two options. You must fix the error and retransmit your return electronically, or you can mail a printed copy of your return to the IRS. To mail your printed return, follow the mailing instr~4ctions below. INSTRUC'IONS FOR tILING YOUR RETURN BY MAIL Your federal Form 1040 shows a refund of $241, Please mail your 'eturn to the following IRS address postmarked by Monday, April 16, ZOO1, Ir~ernat Revenue Service Center Philadelphia, PA lg2H5-O002 ge ~ure to ~ign and da~e your re~urn and ~nclude t~e proper amount of postage on the envelope. ATTACHMENTS Attach thc first COpy OF Copy 8 of ~OFmS W'Z u..~ 109~-R to the front of your Form ]040. KEEP THIS PAGE FOIl YOUR RECORDS -- 00 NOT MAIL. S~edule A& B (~orrn 1040) 2000 Char[es C Ktchman, ~'r & loan A Kichman Ktchman Partl Interest Perm Pad II Ordinary Dividends (See insL,~ti~s ~r Form 1040, I~e Pa~ III Foreign Accounts and Trusts sbuctions.) Schedule B - Interest and Ordinary DMdends 08 If you ~ over I~ in taxable interest, you mus also cemplete Part I. List name of payer. If any iflterest i$ from a ~ller-finar~ced red,age and the buyer esed Amount the property as a personal residence see the ~astruc~ns and list this interest first. Also show that buyer's social securre/number and address ................................. ..s _u s_q_u_e h__a..n _n a_ _Va LLe.~ _G_c_.u_ ............................ _H_a s_s_a_c h_u_s_e c_Ls_ H_uJ_u a_ L _L ! f_e ........................... Add lhe amounts on line I'. ........................................................... 2 ~xc~able interest on series £~ and I U.$. savings be~s ~usd after 1~8e ~m Ferm 881~, ~ 14. You mu~ aflac~ Fecm 8815 ........................................ -. ..... _--_--7 ..... ~-T ................ ~' ........ ~or ~l¢~prlons and fill~ mq~lrsmant~ ~or Form ?B F ~-ZZI ............................................ Unmimbursed Employee Business Expenses in.hal Re~nue so.ica (99) ~' A~ch to Form 11]a8. ~ CharLes C ~chman, ~r Part Ttme Sales 186-28-5006 Y~ ~ u~ ~s ~rm o~ if All of ~e ~ng appb: 2000 · If y~u a~'e c~aiml~g vehicle axper~Se, you are USI~ the sthn~lard m~eoge rote for Cau~fl= You c~ use Re s~rd mi~ rate ~r ~ ~ i~ (a) y~ owed fi=( y~o~ E~[ced [he vefigle ~ saw, e, w (b) y~ ~ased ~e veh~ a~ used ~e s~ard mi~age mia ~r ~e ~r~n of ~e ~e ~ Rgum Your ~ns~ Vehicle expense ~sino the standar~ mileage rata. Completa Part II and mulUply line 8a by 32.1/2 · (.325) .... 1 Parking fees, tolls, and transportation. Including b'ain, bus, eta, that did net involve overnight ~ra~ el or commull'ncj '~ o~ from WOrK ......................................................................... 2 Travel expense while away f~om home overn ght, inc ud q lodging, airplane, car renal, eLc. De r et include meals and eflterte~nment ...................................................................... 3 so: 4 Business expanses not included on l~nas 1 through 3, Do nol include mea[s and enterlainment .............. e Meals and entertainment expe~aes: $ 300. x 50% (.50) (Employees subject :o Department of Transportation ~OT) hours of service limits: Multiply meal expenses by 60% (,60) insteau of 5OW. For more details, see insa'uc~ns.) ............................................................ 5 ~s~ruc~na for specin r~s on where to enter this amounL) ............................................. 6 200, ~ Information off Your Vehicle. Complete mis part only if you are claimirpg vehicle expense cn line 1. 7 When did you place your vehicle in service for business use? (month, day, year) ................................... 11a Do you have evidence to supporl your deduction? ...................................................... . Yes . b If'Yes,' is lhe evidence written? ...................................................................... Yes No BAA For Pelto'work Reduction Act Notice, see separate Iflstru~ons. Form ZI0~.EZ (20(30) Schedule A Lines 20, 22, 27 · Attach to return (after all IRS ferns) Name(s) Shown on Retom Charles C Kichman, .i'r & loan A Ktchman Kfchman Employee Business ExpenSes - Subject to 2% Limitation Mb ;ollancou Itemized OeducUons Statement 2000 Statement Social Security Number 'l 186-28-5006 DeductibJe expenses from Form 2106, line 10 le~ cled~a;tJor~ for performi~ artists and handicapped employees claimed e[fiewhere ........... 1 Other unreimbursed employee business expenses: Union and professional dues ................................................. Z a Professional subscriptions ................................................... b Uniforms and protective clothing ............................................. c Job search costs ............................................................. d Other: 200.00 3 Total unreimbmsed employee business expenses (to Sch A, line 20) ...... MIscellaneous Expenses - Subject to 2~ Limitation investment Check ~he ~ox in/nve.,~ment column if an investment e~q~ense expense 4 Depreciation and amortization deductions ............................... .~_- 3 200,00 4 Casualty/~ft loses of property used in ~rvices as an employee ....... X_ 5 REMIC expenses, ~'om Schedule E ...................................... X 6 Investment expenses related to interest and dividend income ........... ~. 7 Expenses related to podfolio income, from Schedule(s) K.I ............. ~_ 8 Miscellaneous deductions, from Schedule(s) K-I ........................ ~. 9 Excess deductions on termination, from Schedule(s) K-] ................ __. 10 Other deducUbte expenses: Investment counsel and advisory fees ................................... ~X. 11 a Certain attorney and accounting fees ............................. : ...... X b Safe deposit box rental fees ............................................. X. c lEA custodial fees ....................................................... _.X. d Tax preparation s0~are and tax publications ........................... _. e C~er: f 12 Total miscellaneous expenses, Combine line,~ 4 - 11 (to $ch A, line 22) 12 Other Miscellaneous Deductions - Not Subject to 2% Umitatlon 13 Federal estate tax paid on decadent's income reported on this return ....... 14 Impairment-related-expenses of a handicapped employee, from Form 2106 .. 14 15 A~ortizable bond premiums on bonds acquired before 10/23/86 ............. 15 le GambltnO losses ............................................................. 17 CasuaJty/thefi losses of income-producing property .......................... Te Other: 18 1 350.00 1,350.00 19 Total otherml$cdedu~tions. Combine lines 13 - 1S (to ach A, line 27) ..... 19 Charles C K'ichman, .lr & Zean.,&~K.tChmbr~ KlPhman Part IV - Direct De.it Information 186-28-5006 Page Enter ~ fo{iewing informafion if you want to direcUy deposit of a~ refund: Name of fina~ial institution (optional) ........................ ~' Check the appropriate box: ~ ~ Routing number ................................... checl~in~ Savings ........................................... ~' 11 Account number .................... ~' Pet V- Standard Oeductioniltemlzed Oedu~on$ chec~ this box if you ara itemizing for state lex or other purposes even theugh your itemized deauutiens ara less tflan your s~andar~ dedudbn ........................................................................................................ Check ~is box if you are married filing sm)arately and your spouse itemized deduc~ns .......................................... Check this box to toke the standard deduction even if less than ifemized deductions ............................................ Churl. es C Klchman, .,Tr & ..Tean...~ K'lchmen Ktchman Part N - Direct Deposit Information 186-28-5006 Pace a Enter the fo[lev/me ~ormafion if you want to directly deposit of any refund: Name of ~ancisl institution (optinnal) ........................ · Checkthe appropriate box: Checi~ncj ......................................... · [~ Routing number ................................... ~' Savings ........................................... ~' I I Acceunt number .................... ~' n Part V- Standard Deduction/Itemized Deductions Check this box if you are itemizing for state tax or other purposes even though your itemized deductions are [ess than your ~ standard deduction ........................................................................................................ b ~ Check this box if you are married filing separately and your spouse itemized deduc~ns .......................................... · ~_~ Check this box to take the standard daduc~n even if less than itemized deductions ............................................ · L.J Taxpayer Inten~Jon: Can someone {such as your parenO claim you as a dependant? ............................................................... · -- if so, are you actually claimed as a dependent on that person's tax return? ............................................. ~' OYes -_ No Do you qua[if,/as disabled for Schedule R? See Help ................................................................. ·~ U Yes- No Check if taxpayer is legally blind ............................................................................................ · _ If decedent's return, enter taxpayer's date of death ....................................................... ~' (rnmldd/y,~y) 05/28/2000 Spoese Information: Can someone (such as your parent) claim you as a dependent? ............................................................... ~' -- Do you qualify as disabled for Schedule R? See Help ................................................................. · Yes No Check if spouse is legally blind .............................................................................................. · f deceden['s return, an{er spouse s date of death .......................... ~' (mm/dd/yyyy) Part VI - Other Information for Your Tax Return Check Ibis box to calculate Form 1040 even if you qualify to use Form 104aA or 104.0EZ .......................................... · L,a Do ),au or your q~ouss queliTy far tho epecial pessNe activity rules for texpayem in reel prepe~ buairess? ExcJudable income of bona fide residents of American Samoa, Guam, er the Commonwealth of the Northern Marlana Islands ..................................................................................... · Excludable income from Puerto Rico ........................................................................... · Foreign Tax Cr~JIt (Form 1116): Check this box th file Form 111 a even if you're net required to n[e Form 1116 ................................................... · r-]. Resident counb7 ........................................................................................... ~ USA Pad - riling Information Enter ycu~ state of residence as of December 31, 2000 .......................................................................... PA C~eck the appropriate box: Resident entire year ............................................................................. ~'~] Resktent part of year ............................................................................. Date you estebk~sheci residence In state above ........................................ n which slate (or foreign country) did you reside before this change" ............................. · If you live in one of :he California counties as indicated in Help, check this box ................................................... If you tire in one of th.e New Yin'k_ ceu?es, as indicatoc! in H?lp, check this box ................................................... IRA Distribution Information Worksheet · ' Keep fer your records 2000 Name(s) Shown on Return Social .~;ecur~Y Number £har'tes £ I(~chman, ~r & .Toan A Kichman Kichrnan 186-28-5006 Note= This worksheet pertains only to IRA distributions. To enter IRA contributionL QulckZoom to the tRA Contribuifons Worksheet to enter traditional IRA conb'ibutions ..... QutokZoom to the IRA Contributions Wet,heat to enter Roth IRA con~Uuflons ......... l~ulokZoem to the Form 'IO~-R Work, heat to ~nter thc individual cll~tributi(~ns ................. ~uickZoom to the Roth Carryover Worksheet to enter prior yea' conversion ca.ryo~,ers ......... Traditional IRA Information Tax=ayer Spouse Complete this section if you had any distribution from a traditional lpg, including any conversion5 BASIS. ~f you have ever made a nondeductible contribution a b'aditi0naJ IRA in a previous year, you may have a basis in your traditional lEAs. CAUTION: Basis is not the amount of your distrib~on and is not the value of your iRA, either before or after the distribution, if you never made contributions that you could not deduct, your basi3 is zero. ~ickZoom to enter your to,al basis for 1999 and earlier years Enter the combined value of all traditional Ig~s (including SIMPLE [RAs) on 12./31/00 (See Help) ............... __ If any amounts were rechemcterized either to or from any traditional iRA, enter the net amounts recha.actedzed after 12/31/(]0 (See Help) ............................................ Enter the total amount of any tradJUonal IRA ~ll~ibution~ that you roi[ed over, or intend to roll over, to another traditional IRA, but the rollover was (or will be) made after 12/31/00 ....... Che~ this box if you converted all of the traditional IRAs yOu had in 2000 to Roth IRAs in 2000 ............................... Qulc~Zoom to Form 8606 for Traditional IRA distributions ...... Roth IRA Information Taxpayer Spouse Complete this section if you had any dietribu~on from a Roth IRA that was not a recharacterization or a rollova.. Yes No 5 Did you have any open Roth IRA accounts on 12/3]/00 ......... [] [] qulckZoom to Form 8606 for Roth IRA distributions ............ ~ Quick,Zoom to Roth IRA Carryover WIS for prior year car,'overs Education'lRA Info~natto~ ' Taxpayer Cornptete this section if you had any distribution from an education IRA that was not a rollover. 6 Do you want to waive any exclusion you may be entitled to fo*' L-[ Yes 2000 qualified higher education e~penses?I J No 7 E~ter your quaJified higher educatidn expenses for 2000. QuickZoom to Form 8606 for education iRA distributions ....... ~ Yes No Yes No Form 1040 Une Social Security Benefits Workshett Z000 ~ Keep for your rc, ords Social Securfiy Number _{ 186-28-5006 Taxpayer Spou~ 4,4~9.. 0. Name(s) Shown on Return Charles C Kichman, J'r & Joan A Ktchman Kichman Enter the to{al amount from ~x 5 of all your Ferrn~ ,%~A-10~3 ...... __ Enter ~ total a~unt IrO~l ~ox 5 ~ ~l your F~ ...... ~ter ~e to~l a~unt of f~al income ~x wished from all yo~ For~ SSA*I~, ~x 6, and RRB-I~, ~x 10 ............ ~r ~ ~l a~unt of ~icam B premiss wilhold ............ 91. Add amounts from line A and line B above ....................................... 1 __ _4,429. Enter one.half of line I ........................................................... 2 2~,21 Add the amounts on Form ]040, lines 7 (before adoption benefits exclusion 8a (before U.S. savings bond Jn[erest exclusion), db, g Brough 14, 15b, 17 Brough 19, anQ line 21, or on Form 1040A, add tines 7, da, db, 9, I0, lib, 12b, and 13, Also include certain income of bona fide residents of American Samoa or Puerto Rico ............................................................ 3 Enter the total of any exclusions/adjuslments for: e Foreign earned income or housing exclusion .................................. 4 Add lines 2. 3, and 4 ............................................................. Amount from Form 1040, Ithes 25 throug~ 31 a, plus any write-)n amounts on line 32 (other than foreign housing deduction) ............................... Sublract line 6 from line 5 ....................................................... 7_ 51,920. I~ter $25,000 ($32,0~0 if married filing jointly; $0 if married filing sepafatelf and you lived with your spouse at any time in 2000) ............................8 32,000, Subtract line 8 from line 7. If zero or less, enter -0- . ........................... 9 19~ 920. If line 9 i~ zero or less, stop here; none of your social security benefits am taxable. Do no[ enter any amounts on Form 1040, lines 20a or 2Ob, or on Form 1040A, lines 14a or 14b. if marri l l]ling paratcly and you II l yoa" spout! for all of 2000, artier .0. on Form 1040, fine 20b o,' Form 1040A, line 14b. Be sure to enter 'D' to the left of Form 1¢,0; line 20a, or on Form lO40A, line 14a. line 9 is mom then zero, go to line 10. 10 Enter SO,000 ($12,000 if married filing jointly; $0 if married filing separately and you Jived with your spouse at any time in 3300) ............................. 10 _ 12,000. ll Subtract line 10 trom line 9. If zero or less, enter -0-. ............................ 12 Enter the smalbr of line 9 or line 10 ............................................. 12 12~.000., 13 Enter o~e.halt of line 12 .......................................................... 1:~ 6,000. 14 Enter the smaller of line 2 or line ]3 ............................................. 14 2,215. 15 Multiplyline/! by85%(.8§). Irlinell iszero, enter*O., ....................... 15 _ 6,732, 18 Taxat~lesocial~ecdrify'betleflts. EntefU~esmalteroflinelBorline~7.-".-- lS ~ 3~7~5... · Enter the amount from line ! on Form 1040, line 20a, or on Form 1040^, tinu 14a. · Enter the amount from line 18 on Form 1040, line 2Ob, or on Form 104OA, line la, D. · If line le is zero, do not enter any amounts on Form 1040, lines 2Oa or 2Ob, or on Form 1040A, lines 14a or 14b. Tax Payments Worksheet ~' Keep for your records Name(s) Shown on Re~urn Char'~es C Kfchman..Tr 8, 3'oan A Ktchman Ktchman 2000 Secur~ Numb~ .[156"28-5006 Estimated Tax Payments for 2000 (If more than 4 payments for any stat~ or locality, see Tax Help) Federal SMa Local Date Amount Date Amount ID Date Amount ID 04/17/00 04/17/00 04/17/00 06/15/00 06/15/00 06/]5/00 09/15/00 09/15/00 09/15/00 4 01/16/01 5e _0I__/16/01 01/16/0I Tax Payments Other Thzm Withholding Of multiple states, see Tax Help) F~eral 6 Overpayment:; applied to 2000 ...... 7 Credited by estates and ~sts 8 T~tals Lines 1 ~ough 7 ........... g 2000 exists .................... Taxes Withheld From: Federal 10 Forms W.2 ...................................... 2,237. 11 Forms W-2~ .................................... 12 FOrms 1099-R .................................. 2,590, 13 Forms 1099-MIS¢ and 109g-G .................. 14 ,~'~dules K-1 .................................. 1S Forms 1099-1NT, DIV and OlD .................. 16 Social Security and Railroad Bene~ ........... 17a Other withholding ....... St -- Loc I b O~ler withholding ....... ~t ~ Loc } c Other wi~holding ....... St -- Loc ~ 18 Total Withholding Lines -10 througt~ ~ 7c ........ 4, 8;[7. 1 g Total Tax Pa,~rrlenta for 2000 ................... 4,827. Pdor Year Taxes Paid In 2000 (ff muftiple states or JocaJjtie$, see Tax Help) 20 Tax paid with *rgg9 extensions ........................ 21 1999 esUmated tax paid after 12~31/99 ............... 22 13alance due paid with lggg return ................... 23 Other (amended re~rns, installment payments, etc) . State iD, Local Il) $~e / L~al 775, 29~.. 775, 291. 775, 291. State II) Local ID Tax Summary 2000 Keep for your records Name (s) ssh Charles {2 ~ichaan, Ir & loan A Kfchman Ktchr~an 156-Z8-5006 Toe ne.~me ................................................. :'53,470. AnJustmnts to income ............................................ Adjusted gross income ........................................... 53,470, Itemized/standard deduction ..................................... 17,300. Personalexemptions ............................................. . _ 5,600. Taxable Inceme ..................................................... ... 30,570. Tentative tax ........................................................ 4,586. A~d'r'dona{ loxes .................................................... Alternative minimum tax ........................................... To~I cr~lits ........................................................ Other taxes ......................................................... Total tax ............................................................. 4,586. Total payments ..................................................... 4, 8;Z7. Estimated tax penalty .............................................. Refund .............................................................. 241. Balance due ........................................................ o. Which Form 11~10 to ~ile? You must use Fora lQ40 because you are itemizing deductions. Federal Carryover Worksheet · Keep for your records Name(s) Shown on Re~rn Chartes C Kichman, Ir &]oan A Kichman Kichman Tax end Income [nform~on 2000 Social Secud~ Number 186-28-5006 1ffi9 2O00 Filing sfatus ................................................. 1 2 HFJ humber of exemptions for btind or over 65 (0- 4) ........... 2 , itemized deductions aftef ,,mRation .......................... 3 ._~,_ L,~ 300. Check box Jf required to Jtemiz~ deductions .................. 4 Adjusted gross income ....................................... 5 67,414 .. 53,47'0. Tax liability for Form 2210 or Form 2~10.F ................... Ii 4,586,. 4,586, Alternative minimum tax ..................................... 7 Federal overpayment applied to next year estimated tax ..... 8 9 eState taxes paid with extension ..... St ID .... 9a b State eStimates paid after 12-/31 .... St ID .... b 10 aLocal taxes paid with extension ..... Loc iD .. lOa -- -- bLocal estimates paid after 12/31 .... Loc ID .. b 11 Reserved for future use ...................................... 11 IRA Informa on 12a B~sis of Taxpayer's IRA(s) as of 12.J3l ....................... 12 e b Basis of Spouse's IRA(s) as of 12./31 ........................ b 13a Taxpayer's excess IRA contributions as of 12/3] ............. 13a -- -- b Spouse's excess IRA contributions as of 12/31 ............... b 14a Taxpaye?'s excess MSA contributions as of 12/31 ............ 14 a b Spouse's excess MSA co'~tributions as of 12/3] ............. b 15a Taxpayer's excess R~ IP~ co~ffibulions ~s of l~l ....... 15a b Spouse's excess Ro~ IRA centributims as of ]2/31 ......... b 16a Excess contrii~tions to taxpayer's Education IRA ............ 16a b Excess contributions to spouse's Education IRA ............. b 1999 2000 Loss and Expense Ca~yovem 17 Shorbterm capital ~oss ....................................... ll] Long. Icrm ~pit~l.loss ....................................... 18 19 a Net operating loss ayailabta to carry fo~ard ................. 19 a b AUT Net operating foss available to carry forward ............ b 20a Investment interest expense disallowed ...................... 20a b AMT Investment interest expense disallowed ................ b 21 Nonrecaptured net Section 1231 losses from: e 2000 ....21a b 1999 .... b c 1998 .... c d 1997 .... d i 1996 .... · ' - - · f 1995 .... f · Schedule A Charles ~dlcal i Expenses raxesYou! Paid (~eg ! ~b~uctlenL) Interest You Paid ~ge ins~uc~n*.) Note. Pe sona deductible.,. Cha~ty ag~an~ dot a benefit [or it, see ~sbuctions~. itemized Deductions ,- Attach to Form 1040. See Instmc'dons for Schedule A (Form 1ga, O). C Kichman, Jr & Joan A Kichman Kichman Caution. Od uct ~clude expenses reimbursed or paid by o~grs. ~ I M~lcal a~ den~al expenses (see Lqs~uc~ons} ................ 1 2 E~tm'mmo~fromnFmmlO~O, Ilrm~ ..... I 21 53,470.~ $ Mu~ply U~e 2 above by 7.5~ (.O?:i) .......................... 3 186-28-5006 Subtract line 3 from line L If line 3 is mere than line I, enter .0 ............................ 4 8~ate and local ~come taxes ................................ 5 [Real eslate b~xes (:see insb'ucfions) ........................... 6 Pergonal properly Mxeg ..................................... 7 Other ~axes. List type and gmount '- ............ _~ 9 10 I.~e m~,age lelw~t and ~im r~ed m ~ m Nrta 1098 ............ 10 11 ~ mo~ i~ ~ ~ ~ ~1~ ff ~id e ~ ~ ~m ~m ~ ~ ~ ~m~ ~ i~ ~ ~ ~t ~ mine, The Drovers & Mechanics Bank 192-30-2203 )~_Lo~ ~r~ Street ~fl~k~ PA 17405-255T 11 Add lines 5 through 8 .................................................................. 9 12 hint~ mt mpertN ~ ~ oe Fara 109& Sea imtmctio~ ~' Sl~l roles ...... 12 13 Inv~ent interest A~ch Fo~ ~2 ~ required. ~ee in~uc~ons.) .......................................... 14 Add lings 10 through 13 ........................................................... 15 Gi~ by cash or check. If you made any ~ of ~ or ~re, see ~s~o~ ............................................ 15 m 16 0t~r Ban by cash ~ che~. If any O~ of $~ or more, see ins~ons. You must a~h Form ~3 17 Ca.over ~om prbr year .................................... 17 18 Add Jines 15 ~ough 1~ ................................................................ 18 Casaglty gqd Theft L&r.e~ Job Expends 2~ ~Jnreimbur~ed employee expenses %jOb t~y~J, u~o.n~..s, ~ , Idb e~uca0on, otc, You must attach ~orm ZTOb or Z/Ub-"Z ~ O'~r r if required. (See ins~uctions.)" ,~ ~Iscdlaneous Oeductions~ .................................. .............. ~ ' See Statement 200. 20 19 Casual[y or theft ~o~(es). Attach Fo~m 4~84. ~ee I~struc§ons.) .................. : .......lg 200. ~ge here.) BAA For iaper*~°rkReductl°n Act#~c"se" s'f'a~'akeir'st"uctl~:~, ,o~ 21 Tax preparation fees ........................................ Ltl__ lfiO. 22 Other expenses - investment, safe deposit box, etc. List ~ ~Yp .................... ~ ...5_e e_ ~_~ a t_e_m e n_t ................ _1 ~. 3_~0_. ~2 1,3:;0. ~4 ble'afl~nt~mForml04a, lifleM ..... I 24 J 53,470 28 Is Form ]C~0, line 34, over $12~,960 (over S64,475 if married filing separately)? 'four dsducbYm is nat trotted, Add the amounls in the far ri ht coJumn lines 4 through 27. Also, anfar this amount on Form 1040, ~e 36. ,045, ;631. Form 10~8 (2000) Taxan~ Cr t, Head of ~usehl sepamte~: Other Taxes I S~ed~de ~ mc~ Refund Have it depositedtiSee insffuctJo~ and ~ in 6To 67c, anc~ §Td. .Ad~unt YOU Owe Sign Joint return7 PMd Char[es £ ~(ichman, Jr & ]'oan ^ l(fchman K'ichrnan ~ A~unt ~om ~ine ~ (~j~ gross ~co~e) .................. Add ~e number ofboxes checked above a~ enter me to~l here ............ b ffyou are marred fiflq separately and your s~ouse ~m~es dedu~fls~ or you we~ a dual.s~s allen, see i~buc~ and check here ............. n~r your I~ ~ucffons ~om Schedu~ A, line ~, ~ mn~ ~own on ~e ~ But .e i~c~ns m fi~ your ~fldard d~Uon ~ you checked 39 T~in~. 5~ct line ~ ~om I~e 37. If tine 38 Js ~re Iha, fine 37, enter -0..... ~ 30,570. · Altemat~e minimum ~x. A~ch Form ~T .......................................... ~ Foreign Ux crediL A~ Form Tl~5 Jf r~uk~ ............. ~ Chig ~x ~ed]t (~e ifls~uc~ons) .......................... 47 ~ Adoptgfl ~iL R~ch Form 8~9 ......................... ~ O~er, C~ck if ~em.. a ~Fo~ 38~ b ~For~ ~ c ~ Form ~1 d~ ~ Form (spec~) 51 Subffact fine 50 ~om fine 42. If line ~ is ~re ~an fine ~, enter .0 .................. M Taxon ~s, omerret~ement pmn5, and MSAs, A~ch Form 5~ ~requ~ed ............ ~ A~nce earned income ~ed~ pay~nts gem Fo~Cs) W.2 ............................ ~ House~ld emp~ymeflt ~xes. A~ch Schedule H ..................................... ~ Federal income ax wi~he~ from Forms W.2 and 1~ ...... ~ 4,827. b ~nbxable earn~ ~ome: amount. ~ a~ ~pe . ~ 65 Add lines 58, 59, G~ an~ fil ~roug~ ~4. ~e~ are your 67a A~unt of line ~ you ~nt ~n~d to~ ....................................... ~ ~e 241. ~ bR~n9 numbez ........ c Type: ~ ~ng ~ ~avJngs ~ d A~auntnumber ....... ~ EsUma~d tax penal, A~o I~lude on line 69 .............. ~ ~ ~ ~ -__ _ 5et f-oreoared 040 For the year Jan l-~c 31, 2000. or other tax year beg~nnin~ Label; D~£~S~D £har~es £ Ktchman, Individual Income Tax Return ,2000, ending You'F~ h~me iV/ Last ~a'm Char[es C Xi ehman, Use the msa~, ~oan A Kichman or,po.: 355 Old 5tape Road P~n~l Le~fsbecry PA 27339 156-28-$006 S~s 192-30-2203 You m~ en~r sec~i~ number(el above. Campaign Ik ~ote: Checking 'Yes' will not change our tax or educe your refund. You Spouse ¢.~ns~ne~or, s.)-uoyou, oryourspouseiffilingajoin~ret~rn, want$3togotothis~nd? ....... "i-lYes Filing Status 2 X_ Married ming ~oint refum (even if only one had income) 3 -- Married fil~ng separah~ return, Enter spouse's SSN above & full name hor~ ,.. P Check odly 4 _ Head of household (with qualifying person). (See inst~ucUons,) h'l~e qual,~ing person is a child but not your one box? dependant, enter this child's name hero ... ~' , 5 ~ Qualifying widow(er) with dependent child {year spouse died .' ). (Sen instructions.) 6a ~J Yeunelf. If your parent (or someone eisa) can claim you as a depon~ient on h;a or -~ · social seourily reiatiom;hip r~C~g six dependents, see instrbc~ns. .~m 8a Ta~bte interest Altech Schedu!e g it requii, ed ........................................ 8a ~07, Attad~ Fomm b Tax"exempt inte,'esL Do not include on line 8a ............. I 8bi W.Z aed~W,~i bm. Also attach g Ordinal' dividends. Attach Schedule B it required Farm(s) tO99.R IftO Taxable refunds, credils, or offseta of state and local income taxes (see insb uchons) .... 10 taxwuwlthheld. 11 Alimonyreceivad ............................................................ 11 ~ 12 8udneso ncomeor(ldse).A[tach $chedutaCorC.E2 ................................ 12 I~'you did not , 16aTotalpensi0ns&annuilie$. ]tie b Taxg~leamount($ee~n~its/ .. lob 17 Rental real estate, royalties, partnerships, S corporations, ~sts, etc. A~ch Scheduld £.. ~7 Enclosel bul do 18 Farm income or (loss). Attach Schedule F ........................................... nat attach, any 19 Unemployment compensation ...................................................... payment. Also, 19 please use 20a Sociats~cuntybemdits ..... I 20al 4,429.J b Taxabtaamount (see instrs) .. 2Qb 3.765. Fem~ l~lO.V. 21 Ot~ i~me, IJ~t ['~ & aee~t (sa i~j 21 L JOAN KICHMAN, INDIVIDUALLY AND : IN THE COURT Of COMMON PLEAS OF AS THE EXECUTRIX OF THE ESTATE: CUMBERLAND COUNTY, PENNSYLVANI! OF CHARLES KICHMAN, DECEASED,: PLAINTIFF JAMES PASTOR, M.D., WEST SHORE ANESTHESIA ASSOCIATES, LTD., ROBERT P. LONERGAN, M.D., HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, DEFENDANTS : 02-2196 CIVIL TERM ORDER OF COURT AND NOW, this day of October, 2003, IT IS ORDERED that status conference shall be conducted before this judge at 9:30 a.m., Tuesday, December 9, 2003. The. case will remain on the trial list for the January term and this Wayne R. Spivey, Esquire Paul Bucci, II, Esquire For Plaintiff judge will determine at the status conference whether it should be stricken. Edga~-B. Bayley, .(~J'. Michael M. Badowski, Esquire For James Pastor, M.D. and West Shore Anesthesia Associates, LTD. Joseph P. Hafer, Esquire Hugh P. O'Neill, Esquire For Robert P. Lonergan, M.D. Steven D. Snyder, Esquire For Holy Spirit Hospital Court Administrator :sal JOAN A. KICHMAN, Individually and as the Executrix of the Estate of CHARLES C. KICHMAN, Dec'd, Plaintiff JAMES PASTOR, WEST SHORE ANESTHESIA ASSOCIATES, LTD ROBERT P. LONERGAN and HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, Defendants 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-2196 C1VIL ACTION - LAW JURY TRIAL DEMANDED STIPULATION OF COUNSEL AND NOW, come Paul Bucci, II, Esquire, counsel for pl~fintiff; Michael M. Badowski, Esquire, counsel for James Pastor, M.D. and West Shore Anesthesia Associates, LTD; Joseph P. Haler, Esquire, counsel for Robert P. Lonergan, M.D.; and Steven D. Snyder, Esquire, counsel for Holy Spirit Hospital, and hereby stipulate and agree as follows: 1. The praecipe filed on or about September 23, 2003, listing this case for trial during the January 2004 Term of Court is hereby withdrawn and this case shall not be placed on the January 2004 Trial List. 2. The Motion for a Continuance filed on October 1'7, 2003, by James Pastor, M.D. and West Shore Anesthesia Associates, LTD., is hereby withdrawn. 3. In view of the fact that the case is being withdrax~m from or stricken from the trial list and the motion for a continuance has been withdrawn, the status conference scheduled for December 9, 2003 before Judge Bayley is not necessary, and it is respectfully requested that an Order be entered canceling the status conference. Date: By: SHRAGER, SPIVEY & SACHS Paul Bucci, II, Esquire Counsel for Plaintiff Date: By: l~ael ~ Badowsk~, Esquire Counsel for Defendants James Pastor, M.D. and West Shore Anesthesia Associates, Ltd. By: [_ ] By: Date: 1[~13/03 MET~I~, EVANS & WOODSIDE S~e~en D. Snyder, Lsquire(// Counsel for Defendant Holy Spirit Hospital NOV 1 8 2003 JOAN A. KICHMAN, Individually : and as the Executrix of the Estate : of CHARLES C. KICHMAN, Dec'd, : Plaintiff : V. JAMES PASTOR, WEST SHORE ANESTHESIA ASSOCIATES, LTD ROBERT p. LONERGAN and : HOLY SPIRIT HOSPITAL OF : THE SISTERS OF CHRISTIAN : CHARITY, : Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-2196 CIVIL ACTION - LAW JURY TRIAL DEMANDED ORDER AND NOW, this [C~ day of November, 2003, pursuant: to a Stipulation of Counsel, IT IS ORDERED that this case shall be stricken from the January 2004 Trial List and the status conference scheduled for December 9, 2003 is canceled. 383567vl ~ THOMAS, THOMAS & HAFER, LLP Joseph P. Haler, Esquire Attorney I.D. No. 07186 Gerryanne Cauler, Esquire Attorney I.D. No. 90539 305 North Front Street, P.O. Box 999 Harrisburg, PA 17108 (717) 255-7613 Attorneys for Defendants: Robert p. Lonergan, M.D. and Lonergan Orthopedics JOAN A. KICHMAN, Individually and as the Executrix of the Estate of CHARLES C. KICHMAN, Deceased, Plaintiff JAMES PASTOR, WEST SHORE ANESTHESIA ASSOCIATES, LTD., ROBERT P. LONERGAN, LONERGAN ORTHOPEDICS and HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION No. 02-2196 JURY TRIAL DEMANDED Defendants PRAECIPE TO FILE STIPULATION TO DISCONTINUE PURSUANT TO Pa.R.C.P. 229 TO THE PROTHONOTARY: Kindly file of record the attached Stipulation. Also, pursuant to the Stipulation kindly mark this case discontinued as to Defendants Robert P. Lonergan, M.D. and Lonergan Orthopedics only, pursuant to Pa.R.C.P. 229 and amend the caption to reflect the deletion of Defendants Robert P. Lonergan, M.D. and Lonergan Orthopedics only. DATE: By: THOMAS, THOMAS & HAFER, LLP Jos' ~C~A.x~ c<~ eph P. Htfer, Esquire Attorney I.D. No. 07186 Gerryanne Cauler, Esquire Attorney I.D. No. 90539 305 North Front Street P.O. Box 99!9 Harrisburg, PA 17108-0999 Counsel for Defendants Robert P. Lonergan, M.D., and Lonergan Orthopedics THOMAS, THOMAS & HAFER, LLP Joseph P. Hafer, Esquire Court I.D. No. 07186 305 North Front Street, P.O. Box 999 Harrisburg, PA 17108 (717) 255-7613 Attorneys for Defendants: Robert P. Louergan, M.D. and Lonergan Orthopedics JOAN A. KICHMAN, Individually and as the Executrix of the Estate of CHARLES C. KICHMAN, Deceased, Plaintiff JAMES PASTOR, WEST SHORE ANESTHESIA ASSOCIATES, LTD., ROBERT P. LONERGAN, LONERGAN ORTHOPEDICS and HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION No. 02-2196 JURY TRIAL DEMANDED STIPULATION TO DISCONTINUE AS TO LESS THAN ALL DEFENDANTS The undersigned, counsel for the parties in the above-captioned matter, hereby stipulate and agree, pursuant to Pa. R.C.P. 229(b), to the dismissal of this action as to Defendants Robert P. Lonergan, M.D. and Lonergan Orthopedics only, with prejudice. The remaining parties remain as Defendants to the case. It is further stipulated that separate signature pages for counsel may be appropriately attached to the aforesaid Stipulation, and that the case caption to be amended to remove Defendants Robert P. Lonergan, M.D. and Lonergan Orthopedics. THOMAS, ~~p~ Date: /~' ~'-~ By: C/J~I'~ I.D.'Nfl. 07186 fg, flunsel for Defendants q~obert P. Lonergan, M.D., and Lonergan Orthopedics 258343-1 METTE, EVANS & WOODSDE n Snydery, Esquire Counsel for Defendant hbly Spirit Hospital 258343-1 CERTIFICATE OF SERVIC._~.E I do hereby certify that on this day I served a true and correct copy of the foregoing by first class mail, postage prepaid, addressed to the following: V. Paul Bucci, II, Esquire Shrager, Spivey & Sachs 32nd Floor, Two Commerce Square 2001 Market Street Philadelphia, PA 19103 Michael Badowski, Esquire Margolis Edelstein P.O. Box 932 Harrisburg, PA 17108-0932 Steven D. Snyder, Esquire Mette, Evans & Woodside 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 THOMAS, THOMAS & HAFER, LLP 268391.1 By: d%.~ v.' c~,_~._~ ~,..) Gerryanne ~auler, E-squire Attorney I.D. No. 90539 305 North Front Street P.O. Box 999 Harrisburg, PA 17108-0999 Counsel for Defendants Robert p. £onergan, M.D., and Lonergan Orthopedics THOMAS, THOMAS & HAl*ER, LLP Joseph P. Itafer, Esquire Court I.D. No. 07186 305 North Front Street, P.O. Box 999 Harrisbur~ PA 17108 (717) 255-7613 Attorneys for Defendants: Robert P. Lonergan, M.D. and Lonergan Orthopedics JOAN A. KICHMAN, Individually and as the Executrix of the Estate of CHARLES C. KICHMAN, Deceased, Plaintiff JAMES PASTOR, WEST SHORE ANESTHESIA ASSOCIATES, LTD., ROBERT P. LONERGA_N, LONERGAN ORTHOPEDICS and HOLY SPIILIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION No. 02-2196 JURY TRIAL DEMANDED ORDER AND NOW, this ~ day of~, 2003, upon consideration of the within Stipulation to Discontinue as to Less than All Defendants, it is hereby ORDERED and DECREED that Defendants Robert P. Lonergan, M.D. and Lonergan Orthopedics only, are hereby dismissed from this action, with prejudice, pursuant to the Stipulation to Discontinue as to Less Than All Defendants,,/glI'a e~"-d her./o~t A. BY T~~ ! 258392.1 THOMAS, THOMAS & HAFER, LLP Joseph P. Haler, Esquire Court I.D. No. 07186 305 North Front Street, P.O. Box 999 Harrisburg, PA 17108 (717) 255-7613 A~orneys ~r De~ndants: Robe~ P. Lonergan, M.D. and Lonergan Orthopedi~ JOAN A. KICHMAN, Individuallyand as the Executrix oftheEstate ofCHAKLESC. KICl-IMAN, Deceased, Plaintiff Vo JAMES PASTOR, WEST SHORE ANESTHESIA ASSOCIATES, LTD., ROBERT P. LONERGAN, LONERGAN ORTHOPEDICS and HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRIST~ CHARITY, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION No. 02-2t96 JURY TRIAL DEMANDED ORDER AND NOW, this ~'~ day of ~, 2003, upon consideration of the within Stipulation to Discontinue as to Less than All Defendants, it is hereby ORDERED and DECREED that Defendants Robert P. Loaergan, M.D. and Lonergan Orthopedics only, are hereby dismissed from this action, with prejudice, pursuant to the Stipulation to Discontinue as to Less Than All Defendants, a/,~ed beret A. (/Ill BY T~ 258392.1 JOAN A. KICHMAN, Individually and as the Executrix of the Estate of CHARLES C. KICHMAN, Dec'd, Plaintiff JAMES PASTOR, WEST SHORE ANESTHESIA ASSOCIATES, LTD and HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-2196 CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR SUBSTITUTION OF COUNSEL TO THE PROTHONOTARY: PLEASE withdraw my appearance for the defendant, Holy Spirit Hospital. /S~xTe~ D.~n~der, Esq~r~ PLEASE enter my appearance on behalf or, the defendant, Holy Spirit Hospital. By: i ~/'/ t~ // Craig A. ~gte(r :, l~squire Sup. Ct. I.D. ~y~ 15907 3401 No~ Front Street P. O. Box 5950 H~isb~g, PA 17110-0950 (717) 232-5000 - Phone Attorneys for Defendant Holy Spirit Hospital Date: February 26, 2004 CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the U.S. mail, First-class postage prepaid, as follows: V. Paul Bucci, II, Esquire Shrager, Spivey & Sachs 32nd Floor, Two Commerce Square 2001 Market Street Philadelphia, PA 19103 Michael M. Badowski, Esquire Margolis Edelstein P.O. Box 932 Harrisburg, PA 17108-0932 Date: By: METTE, EVANS & WOODSIDE Ka~XE.l,~ipton, Paralegal for Craig A. Stone, Esquire Sup. Ct. I.D. No. 15907 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 - Phone Attorneys for Defendant Holy Spirit Hospital 392429vl JOAN A. KICHMAN, Individually and as the Executrix of the Estate of CHARLES C. KICHMAN, Dec'd, Plaintiff JAMES PASTOR, WEST SHORE ANESTHESIA ASSOCIATES, LTD., ROBERT P. LONERGAN, LONERGAN ORTHOPEDICS, and HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-2196 CIVIL ACTION[ - LAW JURY TRIAL DEMANDED NOTICE TO PLEAD TO: Joan A. Kichman, Individually and as the Executrix of the Estate of Charles C. Kichman, Dec'd, Plaintiff c/o Wayne R. Spivey, Esquire V. Paul Bucci, II, Esquire Shrager, Spivey & Sachs 32nd Floor, Two Commerce Square 2001 Market Street Philadelphia, PA 19103 You are hereby notified to plead to the within document within twenty (20) days after service hereof, or a default judgment may be entered against you. By: Craig A~. Sto~e, 1~ Sup. Ct. I. D~#15 3401 North lrom P. O. Box 5905,9./ i)ODSIDE 07 ;treet Harrisburg, PA 17110-0950 (717)232-5000 Date: k/at)/ ]g 200~/ Attorneys for Defendant Holy Spirit Hospital JOAN A. KICHMAN, Individually and as the Executrix of the Estate of CHARLES C. KICHMAN, Dec'd, Plaintiff JAMES PASTOR, WEST SHORE ANESTHESIA ASSOCIATES, LTD., ROBERT P. LONERGAN, LONERGAN ORTHOPEDICS, and HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-2196 CIVIL ACTION - LAW JURY TRIAL DEMANDED ANSWER AND NEW MATTER OF DEFENDANT~ HOLY SPIRIT HOSPITAL~ TO PLAINTIFF'S AMENDED COMPLAINT AS FURIHER AMENDED BY STIPULATION AND NOW, comes the defendant, Holy Spirit Hospital, by and through its attorneys, Mette, Evans & Woodside, and in response to the plaintiff's amended complaint as further amended by stipulation and avers as follows: 1. Denied. After a reasonable investigation, the defendant is without knowledge or information sufficient to form a belief as to the truth of the avern~ents set forth in paragraph 1 of the plaintiff's amended complaint and, therefore, said averments are deemed denied. 2. Denied as stated. It is admitted that James Pastor, M.D., is an adult individual, is a citizen and resident of the Commonwealth of Pennsylvania, and at all times relevant hereto has been engaged in the practice of medicine as an anesthesiologist. It is further admitted that he has staff privileges at Holy Spirit Hospital and engages in the practice of anesthesiology. 3. Denied as stated. It is admitted that Dr. Pastor was engaged in the practice of medicine, pursuing the specialty of anesthesiology. Any remaining averments set forth in paragraph 3 of the plaintiff's amended complaint constitute con.clusions of law to which no response is required. 4-5. Denied. After reasonable investigation, the defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraphs 4 and 5 of the plaintiff's amended complaint and, therefore, said averments are deemed denied. 6-9. The action has been voluntarily discontinued, dismissed and ended, with prejudice, against the defendants Robert P. Lonergan, M.D. and Lonergan Orthopedics by Order of Court dated December 5, 2003. 10. Admitted. 11. Denied as stated. It is admitted only that Holy Spirit Hospital held itself out as a properly equipped and properly staffed community hospital. After reasonable investigation, hospital is without information or knowledge sufficient to form a belief as to the identity of the "departments, medical groups, staffmembers, and other agents, servants and employees" to whom reference is made, the agency of the same are denied and strict proof, if relevant, is demanded at the time of trial. 12. Denied. After reasonable investigation, the defendant is without knowledge or information sufficient to form a belief as to the troth of the avermeuts set forth in paragraphs 12 of the plaintiff's amended complaint and, therefore, said averments are deemed denied. 13. The averments of paragraph 6 are incorporated by reference. 14. After reasonable investigation, the hospital is without information sufficient to form a belief as to the identity of the "actual or ostensible agents, servants and employees of :395830_I 2 Holy Spirit Hospital to whom reference is made in the corresponding paragraph ofplaintiWs amended complaint. The agency of whom is therefore denied and strict proof, if relevant, is demanded at the time of trial. It is specifically denied that Dr. ]?astor was an actual or ostensible agent, servant or employee of Holy Spirit Hospital. To the contrary, Dr. Pastor was an independent contractor who enjoyed staffpfivileges. 15. Denied as stated, for reasons set forth in paragraph 6 and pursuant to Pa.R.C.P. 1029(e). It is admitted only that Holy Spirit Hospital is located in Cumberland County, has patients admitted in its facility in Cumberland County, and regularly conducts business within Cumberland County. After reasonable investigation, the defendant is without knowledge or information sufficient to form a belief as to the truth of any remaining averments set forth in paragraph 15 of the plaintiff's amended complaint and, therefon~, said averments are denied. 16. Denied. After reasonable investigation, Holy Spirit Hospital is without information or knowledge sufficient to form a belief as to the truth of the averments in the corresponding paragraph of plaintiff's amended complaint and the same is therefore denied and strict proof, if relevant, is demanded at the time of trial. FACTUALBACKGROUND 17. Denied. After reasonable investigation, the defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph 17 of the plaintiff's amended complaint and, therefore, said averments are deemed denied. 18-24. Admitted in part and denied in part. To the extent that the medical records of Mr. Kichman from defendants, Holy Spirit Hospital, Dr. Pastor, Dr. Lonergan, and their practice groups reflect the averments of the corresponding paragraphs of plaintiff's amended complaint, it :395830 _1 3 is admitted only that such is recorded therein. Otherwise, and to the extent that the medical records do not so reflect and/or contradict the corresponding averments, said averments are denied and at issue pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure and for the reasons set forth in paragraph 1 hereof. It, however, is admitted that Mr. Kichman died on May 28, 2000. 25. Denied. The averments set forth in paragraph 25 of the plaintiff's amended complaint are denied as conclusions of law and are placed at issue pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. 26-28. Denied. After reasonable investigation, the defendant is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph 26, 27 and 28 of the plaintiff's amended complaint and, therefore, said averments are deemed denied. 29 and 31. The averments set forth in paragraphs 29 and 31 of the plaintiff's amended complaint are directed to parties other than the answering defendant and, therefore, no response is required. To the extent a response is required, the averments set forth in paragraphs 29 and 31 are denied and placed at issue pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. The averments of paragraph 6 are incorporated by reference. 30. The averments of paragraph 6 are incorporated by reference. 32. Denied. The averments set forth in paragraph 32 of the plaintiff's amended complaint are denied and placed at issue pursuant to Rule 1029(e) of the Pennsylvania Rules of Civil Procedure. Because the amended complaint fails to identif.~ by name or adequate description the individuals alleged to be "agents, apparent agents, servants and employees" of Holy Spirit Hospital, the defendant is unable to admit or deny such a general averment of agency :395830_1 4 and, therefore, said averment is deemed denied. It is specifically denied that James Pastor, M.D. was an agent, apparent agent, servant, or employee of Holy Spirit Hospital. To the contrary, Dr. Pastor was an independent contractor who merely had staff privileges at Holy Spirit Hospital. 33. Withdrawn by stipulation of counsel which is attached hereto, made a part hereof and marked as Exhibit "1". COUNT I WRONGFUL DEATH ACTION in full. 34. Paragraphs 1 through 33 hereof are incorporated herein by reference as if set forth 35. Denied pursuant to Pa.R.C.P. 1029(e). The averments set forth in paragraph 35 of the plaintiffs amended complaint constitute conclusions of law to which no response is required. To the extent a response is required, it is specifically denied that Holy Spirit Hospital was negligent in any manner and that the plaintiff is entitled to recover for any of the alleged losses set forth in paragraph 35. By way of further answer, after reasonable investigation, the defendant is without knowledge or information sufficient to form a belief as to the truth of any remaining averments set forth in paragraph 35 of the plaintiffs amended complaint and, therefore said averments are deemed denied. WHEREFORE, defendant, Holy Spirit Hospital, requests this Honorable Court to enter judgment in its favor and against all other parties and dismiss the plaintiff's amended complaint with prejudice, costs, and such other and further relief as the Court deems just and proper. :395830 _1 5 COUNT II SURVIVAL ACTION in full. 36. Paragraphs 1 through 35 hereof are incorporated herein by reference as if set forth 37. Denied pursuant to Pa.R.C.P. 1029(e). The averments set forth in paragraph 37 of the plaintiff's amended complaint constitute conclusions of law to which no response is required. To the extent a response is required, it is specifically denied that Holy Spirit Hospital was negligent in any manner and that the plaintiff is entitled to recover for any of the alleged losses set forth in paragraph 37. By way of further answer, after reasonable investigation, the defendant is without knowledge or information sufficient to form a belief as to the truth of any remaining averments set forth in paragraph 37 of the plaintiff's amended complaint and, therefore said averments are deemed denied. WHEREFORE, defendant, Holy Spirit Hospital, requests this Honorable Court to enter judgment in its favor and against all other parties and dismiss the plaintiff's amended complaint with prejudice, costs, and such other and further relief as the Com't deems just and proper. NEW MATTER The Defendant, Holy Spirit Hospital, further avers as follows: 1. The facts set forth in the foregoing answers to Plaintiffs Amended Complaint are incorporated herein by reference as though fully set forth at length. 2. Plaintiff's Amended Complaint fails to state a claim upon which relief can be granted against Answering Defendant. :395830_1 6 3. At no time relevant hereto was Answering Defendant, its agents, servants, employees or otherwise acting for or on behalf of any other Defendant in this action or any other natural person, partnership, corporation or other legal entity. 4. At no time relevant hereto was any other natural person, partnership, corporation or other legal entity acting or serving as an agent, servant, employee or otherwise for or on behalf of Answering Defendant. 5. At all times relevant hereto Answering Defendant complied with the applicable standard of care. 6. Plaintiff's claims against Holy Spirit Hospital are limited to those set forth in paragraph 32 of the Amended Complaint alleging vicarious liability. 7. Plaintiffassumed the risk of injury and this action is therefore barred by the Doctrine of Assumption of Risk. 8. Answering Defendant believes and therefore avers that evidence accumulated through discovery and provided at trial may establish Plaintiff was contributorily or comparatively negligent, and in order to protect the record, Answering Defendant hereby pleads contributory and comparative negligence as an affirmative defentse. 9. Answering Defendant is entitled to contribution in accordance with the Pennsylvania Comparative Negligence Act, 42 P.S. §7102 as amended by Senate Bill 1089, effective August 14, 2002. 10. In the event that it is determined that Answering Defendant was negligent with regard to any of the allegations contained in, and with respect to Plaintiffs Amended Complaint, said allegations being specifically denied, said negligence was superseded by the intervening negligent acts of other persons, parties and/or organizations other than Answering Defendant and over whom said Answering Defendant had no control, right or responsibility and, therefore, Answering Defendant is not liable. :395830_1 7 11. To the extent that the evidence may show that other persons, partnerships, corporations or other legal entities caused or contributed to the injuries or exacerbation of the pre-existing condition of Plaintiff's decedent, then the conduct of the Answering Defendant was not the legal cause of such conditions or injuries. 12. Any acts or omissions of Answering Defendant .alleged to constitute negligence were not substantial causes or factors contributing and the injuries and damages alleged in Plaintiffs Amended Complaint. 13. Plaintiffs injuries and losses, if any, were not caused by the conduct or negligence of Answering Defendant but rather were caused by pre-existing medical conditions and/or causes beyond the control of Answering Defendant, and Plaintiff may not recover against them. 14. The acts or omissions of others, and not Answering Defendant, constituted intervening and/or superseding causes of the injuries and/or dan~ages alleged to have been sustained by Plaintiff and Answering Defendant cannot, therefore, pursuant to Pennsylvania law, be held liable for the alleged injuries to Plaintiff. 15. Plaintiffs claims are barred by operation of the applicable statute of limitations, including 42 Pa.C.S.A. {}5524 and 40 P.S. §1301.605. 16. Plaintiffs claims are barred by operation of the applicable statute of repose. 17. Plaintiffs claims are limited and barred by Sections 103,602 and 606 of the Health Care Services Malpractice Act of 1974, 40 P.S. §1301, ell seq., as amended. 18. Plaintiff's claims are limited and barred by the provisions of the Medical Care Availability and Reduction of Errors (MCARE) Act, 40 P.S. § 12;03.101, et seq. 19. The damages alleged by Plaintiff did not result from acts or omissions of Answering Defendant, its agents, servants or employees, but, rather, from acts or omissions of other persons and/or entities over whom Answering Defendant had no control or right of control. 20. Pa.R.C.P. §238 is unconstitutional on its face and as it may be applied in this case. 8 :395830 _I 21. Answering Defendant is entitled to and incorporates herein by reference the defenses contained in the Federal Health Care Quality Improvement Act, P.L. 99-660. 22. Plaintiffs claims, the existence of which is specifically denied by Answering Defendant, may be reduced and/or limited by any collateral source of compensation and/or benefit in accordance with the Pennsylvania Supreme Court decision in Moorehead v. Crozier Chester Medical Center. 23. Answering Defendant is entitled to and asserts all defenses available to it under the Fair Share Act, 42 Pa.C.S.A. §7102B. 24. Answering Defendant demands trial by jury on all issues. WHEREFORE, defendant, Holy Spirit Hospital, requests this Honorable Court to enter judgment in its favor and against all other parties and dismiss the plaintiff's amended complaint with prejudice, costs, and such other and further relief as the Court deems just and proper. Res ct.:~ll~u~itted, ~arai 32 Ston ,~~ By: Sup. Ct. I.D. #-1~7 3401 North Frgfit ~5treet P. o. Harrisbur~Y;~PA 17110-0950 Date: (717) 232-5000 Attorneys for Defendant, Holy Spirit Hospital 9 :395830 _1 JOAN A. KICHMAN, Individually and as the Executrix of the Estate of CHARLES C. KICHMAN, Dec'd, Plaintiff ¥. JAMES PASTOR, WEST SHORE ANESTHESIA ASSOCIATES, LTD and HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, Defendants 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-2196 CIVIL ACTION - LAW JURY TRIAL DEMANDED STIPULATION OF COUNSEL FOR FURTHER AMENDMENT TO THE AMENDED COMPLAINT day of?~l,J~2 04,-----~ it is hereby stipulated and agreed by and AND NOW, this J '~ between counsel for the plaintiff and counsel for the defendant, Holy Spirit Hospital of the Sisters of Christian Charity (hereinafter referred to as "hospital'"), that the claims set forth by Plaintiffs in paragraph 33 of the Amended Complaint, to which hospital has addressed Preliminary Objections, is withdrawn, voluntarily dismissed and discontinued, with prejudice, rendering the Preliminary Objections moot. The action shall continue, without effect or prejudice hereby, against hospital as to claims set tbrth in paragraph 32 of the Amended Complaint and against the other defendants for all clai~, s as~ert/~5 SHRAGER, SPIVEY & SACHS I~ET'~, By' V. P~squire By' Counsel for Plaintiffs Counsel fo Hospital 395828vl t3¢ the Amended Complaint. th& ~efendant, Holy Spirit he Sisters of Christian Charity VERIFICATION I, Franchesca J. Charney, Director of Risk Management at Holy Spirit Hospital, verify that the statements made in the foregoing answer and new matter which are within the personal knowledge of the undersigned, are true and correct, and as to the facts based on the information of others, the undersigned, after diligent inquiry, believes it to be true. And further, I signed this verification on the recommendation of my attorneys, who advise me that the allegations and language in this document are required legally to raise issues for resolution at trial, by the Court, or by continuing investigation and preparation for trial. I understand that some of these allegations may prove inappropriate after investigation and trial preparation are complete and I leave determination of these matters to my attorneys on their advice. I understand that all statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904, relating to unsworn falsification to authorities. HOLY SPIRIT HOSPITAL Dated: By: chesca J. Charnq~/ Director of Risk Management CERTIFICATE OF SERVICE I certify that I am this day serving a copy of the foregoing document upon the persons and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage, prepaid, as follows: V. Paul Bucci, II, Esquire Shrager, Spivey & Sachs 32na Floor, Two Commerce Square 2001 Market Street Philadelphia, PA 19103 Michael M. Badowski, Esquire Margolis Erie}stein 3510 Tfindle Road Camp Hill, PA 17011 Date: By: Respect/~y submitted, woo s¢ sCruapi: ~.D.~ s¢~m~' e 3401 North Front Street P. O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 Attorneys for Defendant Holy Spirit Hospital Shrager, Spivey & Sachs By: Wayne R. Spivey, Esquire/V. Paul Bucci, II, Esquire Identification Numbers: 31017/87394 32nd Floor, Two Commerce Square 2001 Market Street Philadelphia, Pennsylvania 19103 (215) 568-7771 JOAN A. KICHMAN, Individually and as the Executrix of thc Estate of CHARLES C. KICHMAN, Dec'd Plaintiff VS. JAMES PASTOR, WEST SHORE ANESTHESIA ASSOCIATES, LTD., and HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY Defendants CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL DMSION Nc,.: 02-2196 PLAINTIFF'S MOTION FOR STATUS CONFERENCE Plaintiff, Joan Kichman, by her counsel, Shrager, Spivey and Sachs, respectfully moves the Court for status conference in this matter and in support thereof, plaintiff avers as follows: 1. The instant Civil Action was commenced by the filing of a Complaint on or about May 13, 2002. Thereafter, an Amended Complaint was filed on or about August 15, 2002. 2. This case involves claims of medical negligence against the defendants relating to the management of anesthesia during surgery involving an open reduction and internal fixation of a right -1- femoral fracture and revision of a fight total knee replacement performed on plaintiff's decedent, Charles Kichman on May 18, 2000 at Holy Spirit Hospital. It is alleged tJhat defendant, James Pastor, M.D., the attending anesthesiologist for the surgery on May 18, 2000, negligently failed to adequately maintain Mr. Kichman's blood pressure causing an ischemic stroke, which led to his untimely death on May 28, 2000. 3. Previously, on October 21, 2003, the Honorable Edgar B. Bayler ordered that a status conference be conducted on December 9, 2003. However, this status conference was postponed at that time by agreement of all parties. 4. The parties have since been afforded the opportunity to conduct further discovery in this matter, including the depositions of all parties to the cause of action and depositions of several physicians involved in various aspects of Mr. Kichman's medic~d care before, during and after the surgery performed on May 18, 2000. 5. On or about July 7, 2003, plaintiff's counsel submitted expert reports to defense counsel. 6. The defendants have failed to provide any expert: report(s) to plaintiff's counsel. 7. It is submitted that plaintiff is ready to proceed to trial, however, insofar as the defendants have failed to provide any expert report(s), this matter remains unready for trial. 8. Therefore, plaintiff hereby requests a status conference in an effort to move this matter towards readiness for trial. 9. Plaintiff' s counsel has sought, and received, the concurrence of opposing counsel in filing the instant motion for status conference. WHEREFORE, plaintiff respectfully requests that this Court enter an Order scheduling a status conference at the earliest convenience. -2- Respectfully submitted, Shrager, Spivey & Sachs Date: July 28, 2004 By: ~f Wayne R. Spiw:y, Esquire V. Paul Bucci, lI, Esquire Attorneys for Ptaintiff By: Wayne R. Spivey, Esquire/V. Paul Bucci, II, Esquire Identification Numbers: 31017/87394 32nd Floor, Two Commerce Square 2001 Market Street Philadelphia, Pennsylvania 19103 (215) 568-7771 JOAN A. KICHMAN, Individually and as the Executrix of the Estate of CHARLES C. KICHMAN, Dec'd Plaintiff VS. JAMES PASTOR, WEST SHORE ANESTHESIA ASSOCIATES, LTD., ROBERT P. LONERGAN, LONERGAN ORTHOPEDICS, and HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY Defendants : CUMBERLAND COUNTY : COURT OF COMMONPI. FAS : C£FIL DIVISION : No,: 02-2196 CERTIFICATE OF SERVICE I hereby certify that on July 29, 2004 a true and correct copy of Plaintiff's Motion for Stares Conference was served on the following persons by the U.S. Postal Service, postage prepaid. Steven D. Snyder, Esquire Mette, Evans & Woodside 3401 No. Front Street Harrisburg, PA 17110-0950 Michael M. Badowski, Esquire Margolis Edelstein 3510 Trindle Road Camp Hill, PA 17011 Date: July 29, 2004 Shmger, Spivey & Sachs for V. Paul Bucci, Esquire Shrager, Spivey & Sachs By: Wayne R. Spive¥, Esquire/V. paul Bucci, II, Esquire Identification Numbers: 31017/87394 32nd Floor, Two Commerce Square 2001 Market Street Philadelphia, Pennsylvania 19103 (215) 568-777! JOAN A. KICHMAN, Individually and as the Executrix of the Estatc of CHARLES C. KICHMAN, Dec'd Plaintiff VS. JAMES PASTOR, WEST SHORE ANESTHESIA ASSOCIATES, LTD., and HOLY SPIRIT HOSPITAL OF THE SISTEKS OF CHRISTIAN CHARITY :.CUMBERLAND COUNTY COURT OF COMMON pLEAS : CIVIL DMSION : : No.: 02-2196 Defendants ORDER AND now, this [ ~ day of ~' 2004, for Status Conference and any response thereto, it is hereby ORDERED . Conference in this matter will be conducted on the _~__z_~~' 2004, ~ o_.~l~, l~y t ~tCou~~ upon consideration of plaintiff's Motion and DECREED that a Status JOAN A. KICHMAN, Individually and as the Executrix of the Estate of CHARLES C. KICHMAN, Deceased, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JAMES PASTOR, WEST SHORE ANESTHESIA ASSOCIATES, LTD., and HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY, DEFENDANTS : 02-2196 CIVIL TERM AND NOW, this ORDER OF COURT ~-~ #~- day of September, 2004, following a status conference, it is ordered: 1. All counsel are attached for a trial to commence on Monday, March 14, 2004. 2. The Prothonotary is to list the case for trial on the March civil list. 3. Plaintiff shall have 60 days from this date to file any supplemental expert report in response to the expert report filed by Defendants James Pastor and West Shore Anesthesia Associates, LTD. the c Edgar B Bayl I Wayne R. Spivey, Esquire - For Plaintiff Michael M. Badowski, Esquire / ! For James Pastor and West Shore Anesthesia Associates, LTD - ¢,.:o1-~¥ ~,~e ~ Craig A. Stone, Esquire For Holy Spirit Hospital of the Sisters of Christian Charity :sal JOAN A. KICHMAN, Individually and As the Executrix of the Estate of CHARLES C. KICHMAN, Deceased, PLAINTIFF JAMES PASTOR, : WEST SHORE ANESTHESIA : ASSOCIATES, LTD., and : HOLY SPIRIT HOSPITAL OF THE : SISTERS OF CHRISTIAN CHARITY, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : 02-2196 CIVIL TERM AMENDED ORDER OF C23U_..~RT AND NOW, this ~.~ ~day of September, 2004, the date in paragraph 1 of the order of September 21, 2004, is corrected to March 14, 2005, rather than 2004. AJ~ other provisions of the order shall remain in full fOrC~ and effect. , By the- Court~// · ,~lichael M. Badowski, Esquire For James Pastor and West Shore Anesthesia Associates, LTD Steven D. Snyder, Esquire For Holy Spirit Hospital and the Sisters of Christian Charity :sa/ Shrager, Spivey & Sachs By: Wayne R. Spivey, Esquire/V. Paul Bucci, II, Esquire Identification Numbers: 31017/87394 32nd Floor, Two Commerce Square 2001 Market Street Phihdelphia, Pennsylvania 19103 (215) 568-7771 JOAN A. KICHMAN, Individually and as the Executrix of the Estate of CHARLES C. KICHMAN, Dec'd Plaintiff CUMBERLAND COUNTY : COURT OF COMMON PLEAS CIVIL DIVISION vs. JAMES PASTOR and WEST SHORE ANESTHESIA ASSOCIATES, LTD. and ROBERT P. LONERGAN and LONERGAN ORTHOPEDICS and HOLY SPIRIT HOSPITAL OF THE SISTERS OF CHRISTIAN CHARITY Defendants No.: 02-2196 Civil ORDER TO DISCONTINUE AND END TO THE PROTHONOTARY: Kindly mark the above-captioned case discontinued and ended, with prejudice. Shrager, Spivey, &Sachs By: /~ V. Paul Bucci, II Attorney for Plaintiffs '--- ) ',) f.: " G....